R. S. Nayak Vs. A. R. Antulay [1984] INSC
34 (16 February 1984)
DESAI, D.A.
DESAI, D.A.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ERADI,
V. BALAKRISHNA (J)
CITATION: 1984 AIR 684 1984 SCR (2) 495 1984
SCC (2) 183 1984 SCALE (1)198
CITATOR INFO :
RF 1984 SC 718 (2) F 1985 SC1655 (4,5) RF
1986 SC2045 (36) RF 1987 SC1140 (3) 1988 SC1531 (145) RF 1992 SC1531 (23) RF
1992 SC1701 (7,9)
ACT:
Prevention of Corruption Act 1947-S.
6-Interpretation of. Whether court can take congizance of offences enumerated
in s. 6 against public servant without sanction of competent authority-Which is
competent authority-Which is competent authority to give sanction-What is
relevant date on which sanction be there-For attracting s. 6 accused should be
a public servant both on date of offence and on date when court takes
congizance of offence. In cases where accused holds several offices each one of
which makes him public servant Weather sanction of competent authorities of all
the offices necessary or whether sanction of that competent authority alone
under which public servant has misuse his office is sufficient.
Indian Penal Code s.21 clauses (3).(7) and
(12) (a)- Definition of 'public servant'-Scope of-Whether Member of State
Legislative Assembly a public servant. Expressions or pay in the pay of and
Government used in s. 21 explained.
Construction of Statutes-Rule of-Construct on
must advance object of Act-Court must give effect to natural meaning of
words-In case of ambiguity court must ascertain intention of legislature behind
Act-Court can take help of external aids-While constructing ancient statute
court can look at surrounding circumstances when statue was enacted.
Words and Phrases- Words 'or an `pay, meaning
of Phrase 'in the pay of, -Explained.
HEADNOTE:
The appellant, R.S. Nayak, filed a complaint
against the respondent, A.R. Antualy, a public servant being the Chief Minister
of Maharashtra State under ss. 161, 165 I.P.C. and s. 5 of the Prevention of
Corruption Act, 1947 (1947 Act) alleging abuse of office of Chief Minister. The
complaint was rejected on account of absence of necessary sanction of the
Governor of Maharashtra State under s. 6 of the 1947 Act to prosecute the
respondent. After the Governor issued necessary sanction, the appellant filed a
fresh complaint in the Court of Special Judge against the respondent on the
same grounds. However, on the date of filing fresh complaint the respondent had
already resigned as Chief Minister. The respondent contended that the Special
Judge had no jurisdiction to try him under s. 7 of the Criminal Law Amendment
Act, 1952 and that no cognizance could be taken on private complaint. The
Special Judge rejected both the contentions. In the meantime the State
Government issued a notification under s. 7(2) of the Criminal Law Amendment
Act, 1752 under which the case was transferred to another Special Judge. In a
criminal revision application filed by the respondent against the order of
earlier 496 Special Judge, a Division Bench of the High Court held that the
Social Judge had jurisdiction to try the respondent and that the private
complaint was maintainable. When the latter Special Judge proceeded with the
case the respondent filed an application for his discharge on the grounds that
the charge against him was baseless and that he being a Member of legislative
Assembly (M.L.A) requisite sanction under s. 6 of the 1947 Act was necessary.
The Special Judge discharged the respondent holding that the respondent being
M.L.A was a public servant within s. 21 (12)(a) of I.P.C. and hl the absence of
the sanction of the Legislative Assembly he could not take cognizance of
offence. . The Special Judge also held that. The material date for deciding the
applicability of s. 6 of the 1947 Act was the date on which the Court was asked
to take cognizance of the offence.
The appellant challenged the order of the
Special Judge in this Appeal.
The questions which arose for consideration
were:- (a) That is the relevant date with reference to which a valid sanction
is a pre-requisite for the prosecution of a public servant for offences
enumerated in s. 6 of the 1947 Act ? (b) If the accuse holds several 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, or is it
implicit in s. 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 or misused for corrupt motives ?
(c) Is M.L.A. a public. servant within the meaning of the expression in clauses
12(a), 3 and 7 of s. 21 I.P.C. ? (d) Is sanction as contemplated by s. 6 of the
1947 Act necessary for prosecution of M.L.A. and if so, which is the
sanctioning authority competent to remove M.L.A. from the office of Member or
the Legislative Assembly ? Allowing the appeal.
HELD: The provisions of the Act must receive
such construction at the hands of the court as would advance the object and
purpose underlying the Act and at any rate not defeat it. If the words of the
statute are clear and unambiguous, it is the plainest duty of the court to give
effect to the natural meaning of the words used in the provisions. In the event
of an ambiguity of the plain meaning of the words used in the statute being self-
defeating, the court is entitled to ascertain the intention of the legislature
to remove the ambiguity by construing the provision of the statute as a whole
keeping in view what was the mischief-when the statute was enacted and to
remove which the legislature enacted the statute. Whenever a question of
construction arises upon ambiguity or where two views are possible of a
Provision, it would be the duty of the court to adopt that construction which
would advance the object underlying the Act. [521 A-C] The basic purpose
underlying all canons of construction is the ascertainment 497 with reasonable
certainty of the intention of Parliament in enacting the legislation. A For
this purpose why should the aids which Parliament availed of such as report of
a special committee preceding the enactment, existing state of law, the
environment necessitating enactment of legislation, and the object sought to be
achieved, be denied to court whose function is primarily to give effect to the
real intention of the Parliament in enacting the legislation. Such denial would
deprive the court of a substantial and illuminating aid to construction.
Therefore, departing from the earlier English decisions, the reports of the
committee which preceded the enactment of a legislation, reports of Joint
Parliamentary Committee report of a commission set up for collecting
information leading to the enactment are permissible external aids to
construction. [527-A; D-E] In construing a statute more especially the ancient
statute, the court may look at the surrounding circumstances when the statute
was enacted. The construction of ancient statutes may be eludicated by what in
the language of the courts is called contemporanea expositio, that is, by
seeing how they were understood at the time when they were passed.
[528F-G] Standard dictionaries as a rule give
in respect of each word as many meanings in which the word has either been used
or it is likely to be used in different contexts and connections. While it may
be permissible to refer to dictionaries to find out the meaning in which a word
is capable of being used or understood in common parlance, the well-known
cannon of construction should not even for a minute be overlooked that the
meaning to the words and expressions used in a statute ordinarily take their
colour from the context in which they appear. [539F-G] Deputy Chief Controller
of Imports & Exports New Delhi v. K.T. Kosalram Ors., [1971] 2 S.C.R. 507
at 517; and State Bank of India v. N. Sundara Money, [1976] 3 S.C.R. 160, referred
to.
Section 6 of the Prevention of Corruption
Act, 1947 bars the courts from taking cognizance of the offences therein
enumerated alleged to have been committed by a public servant except with the
previous sanction of the competent authority empowered to grant the requisite
sanction. Therefore, when the court is called upon to take cognizance of such
offences, it. must enquire whether there is a valid sanction to prosecute the
public servant for the offence alleged to have been committed by him as public
servant. Undoubtedly the accused must be a public servant when he is alleged to
have committed the offence of which he is accused because ss. 161, 164, 165
I.P.C. and s. 5(2) of the 1947 Act clearly spell out that the offences there in
defined can be committed by a public servant. A trial without a valid sanction
where one is necessary under s. 6 would be a trial without jurisdiction by the
court. It is well settled that the relevant date with reference to valid which
a valid sanction is sine qua non for taking cognizance of an offence committed
by a public servant as required by s. 6 is the date when the court is called
upon to take cognizance of the offence of which he is accused. If, therefore,
when the offence is alleged to have been committed, the accused was a public
servant but by the time the court is called upon to take cognizance of the
offence committed by him as public servant, he has cased to be a public
servant, s. 6 will not be attracted and no sanction would be necessary for
taking cognizance of the offence against him. This approach is in accord with
the policy underlying s.6 in that a public servant is not to be exposed to
harassment of a frivolous or speculative prosecution. If he has ceased to be a
public 498 servant in the meantime, this vital consideration ceases to exist.
[512D; H; 513 A-E]. C.R. Bansi v. State of Maharashtra, [1971] 3 S.C.R. 236;
R.R. Chari v. State of U.P., [1963] 1 S.C.R. 121; S.N. Bose v. State of Bihar,
[1968] 3 S.C.R. Venkataraman v. The State. [1958] S.C.R. 1040 at 1052; K.S.
Dharmaatan v. Central Government & Ors., [1979] 3 S.C.R. 832, referred to.
In the instant case, long before the date on
which the cognizance was taken by the Special Judge, the accused had ceased to
hold the office of the Chief Minister and as such had ceased to be a public
servant in his capacity as Chief Minister. A fortiori no sanction as
contemplated by s. 6 was necessary before cognizance of the offence could be
taken against the accused for offences alleged to have been committed in his
former capacity as public servant. [514 D- E] The submission that if the
accused has held or holds a plurality of offices occupying each one of which
makes him a public servant, under s. 6 sanction of each one of the competent
authorities entitled to remove him from each one of the offices held by him,
would be necessary and if anyone of the competent authorities fails or declines
to grant sanction, the court is precluded or prohibited from taking cognizance
of the offence with which the public servant is charged is not acceptable. Such
an interpretation of s.6 would render it as a shield to an unscrupulous public
servant. Someone interested in protecting may shift him from one office of
public servant to another and there by defeat the process of law. Such an
interpretation is contrary to all cannons of construction and leads to an
absurd end product which of necessity must be avoided. [520G; 518F-C] The State
(S.P.E. Hyderabad) v. Anr Commodore Kailash Chand, [1980] 2 S.C.R. 697,
referred to and partly dissented from.
The expression 'office' in the three
sub-clauses of s 6(1) clearly denotes that office which the public servant
misused or abused for corrupt motives for which he is to be prosecuted and in
respect of which a sanction lo prosecute him is necessary by the competent
authority entitled to remove him from that office which he has abused. The
sanction to prosecute a public servant can be given by an authority competent
to remove him from the office which he has misused or abused because that authority
alone would be able to know whether there has been a misuse or abuse of the
office by the public servant and not some rank outsider. The authority entitled
to grant sanction must apply its mind to the facts of the case, evidence
collected and other incidental facts before according sanction. A grant of
sanction is not an idle formality but a solemn and sacrosanct act which removes
the umbrella of protection of government servants against frivolous
prosecutions and the aforesaid requirements must therefore, be strictly
complied with before any prosecution could be launched against public servants.
Therefore, it is implicit in s.6 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. [516H; 517A-D]
Mohd. Iqbal Ahmed v. State of A. P., [1979] 2 S.C.R.
1007, referred to.
499 The finding of the Special Judge that the
respondent being M.L.A. was a public servant within clauses (12)(a) (3) and (7)
of s.21 I.P.C. and sanction of the Legislative Assembly to prosecute him was
necessary, is not correct. A person would be a public servant under clause (12)(a)
of s.
21 I.P.C. if he falls under any of the
following three categories: (i) if he is in the service of the Government;
or (ii) if he is hl the pay of the
Government; or (iii) if he is remunerated by fees or commission for the
performance of any public duty, by the Government. Looking into the history and
evolution of s.21 I.P.C. as traced and adopted as an external aid to
construction, it is clear that M.L.A. was not and is not a 'public servant'
within the meaning of expression in any of the clauses of s. 21 I.P.C. Assuming
that it would not be legally sound or correct according to well-accepted cannon
of construction of a statue of construe s. 21(12)(a) by mere historical
evolution of the section, the constitutionally valid approach would be to look
at the language employed in the section to ascertain whether M.L.A. is a public
servant within the meaning of the expression in that section. Depending upon
the context, 'or'. The use of the expression 'or' in the context in which it is
used in cl.(12) (a) does appear to be a disjunctive. Therefore, those would be
a public servant. The question is whether M.L.A. falls in under any of the
above three categories? It was concerned that M.L.A. is not the service of the
Government but it was contended that M.L.A. is in the pay of the Government.
Undoubtedly, M.L.A. receives a salary and allowances his capacity as M.L.A.
under the relevant statute. But does it make him a person 'in the pay of the
Government'? The word 'pay' standing by itself is open to various shades of
meaning and when the word is used in a phrase in the pay of' it is more likely
to have a different connotation than when standing by itself. The phrase
"in the pay of' would ordinarily import the element of employment or paid
employment or employed and paid by the employer. The phrase does not import of
necessity a master-servant relationship between the person receiving the pay
and the Government as payer. Next what does the expression 'Government' in cl.
(12)(a) of s. 21 I.P.C. connote ? Section 17 I.P.C. provides that the word
"Government' denotes the Central Government or the Government of a State.
Sec. 71 I.P.C. provides that 'every
expression which is explained in any part of the Code, is used in every part of
the Code in conformity with the explanation'. Let it be noted that unlike the
modern statute s.7 does not provide unless the context otherwise indicate', a
phrase that prefaces the dictionary clauses of a modern statute.
Therefore, the expression "Government'
in s. 21(12)(a) must either mean the Central Government or the Government of a
State. The Central Government being out of considering the question is whether
M.L.A. is the pay of the Government of a State or is remunerated by fees for
the performance of any public duty by the Government of a State. Even though
M.L.A. receives pay and allowances, he is not in the pay of the state
Government because legislature of a State cannot be comprehended in the
expression 'State Government'. This conclusion would govern also the third part
of c. (12)(a) i.e. 'remunerated by fees for performance of any public duty by
the Government. Therefore, if M.L.A. is not in the pay of the Government in the
sense of executive government or is not remunerated by fees for performance of
any public duty by the exe- 500 cutive government, certainly, he would not be
comprehended in the expression 'public servant' within the meaning of the
expression in cl. (12)(a). He is thus not a public servant within the meaning
of the expression in cl. (12)(a). This conclusion rein forces the earlier
conclusion reached after examining the historical evolution of cl. (12)(a):
[537 A B; 536G; E; H; 537 H;E; 539 E; 541 A; D-F; 543 E; 551 A-B] Evolution of
Parliamentary Privileges by S. K. Nag ;
Legislative Bodies Corrupt Practices Act,
1925; Prevention of Corruption Act 1947 by Sethi and Anand P.60; Santhanam
Committee Report dt. 31-3-1964; Lok Sabha Debates (Third Series Vol. 35, Cls.
729 and 731; The Anti-Corruption Laws (Amendment) Bill, 1964 (enacted as Act 40
of 1964); G.A. Monerop v. The State of Ajmer, [1959] S.C.R. 682; The State of
Ajmer v. Shivji Lal [1959] supp. 2 S.C.R. 739;
Prabhashanker Dwivedi and Anr. v. The State
of Gujarat, AIR 1970 Gujart, AIR 1970 Gujarat 97; State of Gujart v. Manshanker
Prabhashanker Dwivedi, [1971] 1 S.C.R. 313; Green v. Premier Glynrohonwy State
Co. Ltd, [1928] 1 K.B. 8561 at 568; Babi Manmohan Das Shah & Ors. v. Bishnu
Das, [1967] 1 S.C.R. 836 at 839; Kamta Prasad Aggarwal etc. Executive Engineer,
Ballabgarh & Anr., [1974] 2 S.C.R. 827; M. Karunanidhi v. Union of India,
[1979] 3 S.C.R. 254;
Costituent Assembly debates, Vol. VII p. 984;
Rai Shib Ram jawaya Kapur & Ors. v. The State of Punjab [1975] 1 S.C.R. 225
at p. 236; Shamsher Singh & Anr. v. State of Punjab, [1975] 1 S.C.R. 841;
Sardari Lalv. Union of India & Ors.
[1971] 3 S.C.R. 461; His Majesty the King v.
Boston 7 Ors., [1923-24] 33 Commonwealth Law Report 386.....82; Earskine May
Parhamentary Practice 20 edition, p. 149, referred to The Submission that the
accused would be a public servant within the meaning of the expression any
person empowered by law to discharge any adjudicatory functions, in cl. (3) of
s.21 I.P.C. must be rejected. Participation in a debate on a motion of breach
of privilege or for taking action for contempt of the House and voting thereon
in a constitutional function discharged by the members and therefore, it cannot
be said that such adjudicatory functions if it can be so styled, constitutes
adjudicatory function undertaken by M.L.A. as empowered by law. [554 E-F]
Special Ref. No. 1 of 1966, [1965] 1 S.C.R. 413 at pages 490, 491 and 472; I.C.
Golaknath v. State of Punajab, [1967] 2 S.C.R. 672; Sripadangalavaru v. State
of Kerala and Anr.; [1973] Supp. S.C.R 1 referred to.
The submission that M.L.A. would be a public
servant within cl. (7) of s.21 I.P.C. must be rejected. cl. (7) takes within
its ambit 'every person who holds any office by virtue of which he is empowered
to place or keep any person in confinement. Broadly stated the expression
comprehends police and prison authorities or those under an obligation by law
or by virtue of office to take into custody and keep in confinement any person.
To say that M.L.A. by virtue of his office is performing 'policing or prison
officers' duties would be apart from doing violence to language lowering him in
status. Additionally cl.(7) does not speak of any adjudicatory function. lt
appears to comprehend situations where as preliminary to or an end product of
an adjudicatory function in a criminal case, which may lead to imposition of a
prison sentence, and a Person in exercise of the duty to be discharged by him
by virtue of his office places or keeps any person in confinement. [554G, 555
F-H] In view of the finding that M.L.A. is not a public servant under clauses
(12)(a), (3) and (7) of s.21 I.P.C. and no sanction under s.6 of the Prevention
of Corruption 501 Act, 1947 is necessary to prosecute him. it is not necessary
to ascertain which would be the authority competent to sanction prosecution of
M.L.A. [557 C] In the instant case, the allegations in the complaint are all to
the effect that the accused misused or abused his office as Chief Minister for
corrupt motives. By the time the Court was called upon to take cognizance of
those offences, the accused had ceased to hold the office of Chief Minister.
The sanction to prosecute him was granted by the Governor of Maharashtra but
this aspect is irrelevant for concluding that no sanction was necessary to
prosecute him under s.6 on the offences alleged to have been committed by the
accused. Assuming that as M.L.A. the accused would be a public servant under
s.21, in the absence of any allegation that he misused or abused his office as
M.L.A. that aspect becomes immaterial. Further s.6 postulates existence of a
valid sanction for prosecution of a public servant for offences punishable
under s. 161, 164, 165 I.P.C. and s.5 of the 1947 Act, if they are alleged to
have been committed by a public servant. In view of the finding that M.L.A. is
not a public servant within the meaning of the expression in s.21 I.P.C., no
sanction under s.6 is necessary to prosecute him for the offences alleged to
have been committed by him.
[556 G; 557 A-B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal no. 356 of 1983 From the judgment and order dated 25-7-83 of the Special
judge, Bombay in Special Case No. 24 of 1983.
#AND Transferred Case No. 348 of 1983 AND
Transferred Case No 348 of 1983 Ram Jethmalani P.R. Vakil, Ms. Rani Jethmalani,
Mukesh Jethmalani, O.P. Malviya, Shailendra Bhardwaj and Harish Jagatlani for
the appellant.
Dr. L.M. Singhvi, Dalveer Bhandari, A.M.
Singhvi, S.S. Parkar, H. Bhardwaj, U.N. Bhandari, H.M. Singh, Ranbir Singh and
S.G. Hasnain for the respondent Ashok Desai and Mrs. J. Wad for the petitioner
in T.C. No. 348 of 1983.
M.N. Shroff for State of Maharashtra K.
Parasaran, Attorney General, Ms. A. Subhashini, Gopal Subramanian, R.N. Poddar
and C.V. Subba Rao for Union of India.
502 The Judgment of the Court was delivered
DESAI, J. Respondent Abdul Rehman Antulay (hereinafter referred to as the
accused) was the Chief Minister of the State of Maharashtra from 1980 till he
submitted his resignation on January 20, 1982, which became effective from
January 20, 1982. He thus ceased. to hold the office of the Chief Minister from
January 20, 1982 but continues to be a sitting member of the Maharashtra
Legislative Assembly till today.
As the contentions canvassed before this
Court are mainly questions of law, facts at this stage having a peripheral
relevance in the course of discussion, it is unnecessary to set out the
prosecution case as disclosed in the complaint filed by complainant Ramdas
Shrinivas Nayak (complainant for short) in detail save and except few a
pertinent and relevant allegations. In the process the brief history or the
litigation may also be traced.
The complainant moved the Governor of
Maharashtra by his application dated September 1, 1981 requesting him to grant
sanction to prosecute the accused as required by Sec. 6 of the Prevention of
Corruption Act, 1947 ('1947 Act' for short) for various offences alleged to
have been committed by the accused and neatly set out in the application.
Complainant then filed the first complaint in
the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay on September
11, 1981 being Criminal Case No. 76 Misc. of 1981 against the accused and
others known and unknown collaborators alleging that the accused in his
capacity as Chief Minister and thereby a public servant within the meaning of
Sec. 21 of the Indian Penal Code (IPC) has committed offences under Secs. 161,
165 IPC and Sec. 5 of the 1947 Act, Sec. 384 and Sec. 420 IPC read with Secs.
109 and 120-B IPC. The complaint runs into 31 closely typed pages and carried
the list of 37 witnesses. The learned Metropolitan magistrate invited the
complainant to satisfy him as to how the complaint for offences under Secs.
161, 165 IPC and Sec. 5 of the 1947 Act is maintainable without a valid
sanction as contemplated by Sec. 6 of 1971 Act and ultimately held that in the
absence of a valid sanction from the Governor of Maharashtra, the complaint
filed by the complainant for the aforementioned three offences was not
maintainable. The learned Metropolitan Magistrate accordingly held as per order
dated October 6, 1981 that the complaint was maintainable only for offences
alleged to have been committed by the accused under. Secs. 384 and 420 read
with Secs. 109 and 120B of the IPC and directed that the case be fixed for 503
examining the complainant as required by Sec. 200 of the Cr. P.C. The
complainant questioned the correctness of this order in Special Criminal
Application No. 1742 of 1981 filed in the High Court of Judicature at Bombay.
In the meantime, another development had
taken place which may be briefly noticed. One Shri P.B. Samant, who has also
filed an identical complaint against the accused along with several others
filed a Writ Petition No. 1165 of 1981 in the High Court of Judicature at
Bombay challenging the method of distribution of ad hoc allotment of cement in
the State of Maharashtra as being contrary to the rule of law and probity in
public life. The accused as the second respondent in this petition, the first
and third respondents being the State of Maharashtra and Union of India
respectively. By an exhaustive speaking order dated September 23, 1981, a
learned Single Judge of the High Court granted rule nisi and made it returnable
on November 23, 1981. The writ petition came up for hearing before another
learned Single Judge who by his judgment dated January 12, 1982 made the rule
absolute. Probably as a sequel to this decision of the High Court, the accused
tendered his resignation as Chief Minister on the same day and when the
resignation was accepted he ceased to hold the office of the Chief Minister with
effect from January 20, 1982.
Special Criminal Application' No. 1942 of
1981 filed by the complainant against the order of the learned Chief
Metropolitan Magistrate was dismissed by a Division Bench of the High Court on
April 12, 1982. Not the accused but the State of Maharashtra preferred an
appeal by special leave under Art. 136 of the Constitution against the decision
of the Division Bench of the High Court rejecting the special criminal
application; This. Court rejected the application for special leave at the
threshold on July 28, 1982. (See State of Maharashtra v. Ramdas Shrinivas Nayak
and others) Promptly, on the heels of the judgment of this Court, the Governor
of Maharashtra on the same day granted the sanction under Sec. 6 of the 1947
Act to prosecute the accused in respect of specific charges set out in the
order according sanction. Armed with this sanction, the complainant filed a
fresh complaint in the Court of the Special Judge, Bombay registered as
Criminal Case No. 24 of 1982 against the accused as Accused No. 1 and others
known and unknown. In this complaint it is broadly alleged that the accused who
was the Chief Minister of the State of Maharashtra between the period August
1980 to September 1981 conceived scheme of aggrandisement involving obtaining
of funds from the members of the public and putting them substantially under
his own control for the disbursal of the funds so obtained. The complaint
proceeded to refer to the setting up of various trusts and alleged that the
corner- stone of the scheme involved receipt by the accused of illegal
gratification other than legal remuneration as a motive or reward for doing or
forbearing to do any official act, or for showing or forbearing to show in the
exercise of his official functions, favour or disfavor to persons, or for
rendering or attempting to render any service or disservice to such persons who
dealt with the State Government in general and with public servants who formed
part of the Government. It was specifically alleged that the scheme devised by
the accused was a flagrant abuse of his official position as Chief Minister for
obtaining control over funds which would be used for purposes conducive to the
interest of the accused himself. The complainant proceeded to set out the abuse
of office of Chief Minister by the accused citing various alleged instances
such as distribution of adhoc cement contrary to law and the binding circulars,
granting liquor Licences as and by way of distribution of Government largesse,
issuing no objection certificates for letting out premises by obtaining a price
for the same. The running thread through various allegations is that the
accused by abusing or misusing his office of Chief Minister obtained or
attempted to obtain gratification other than legal remunerations a motive or
reward for doing or forbearing to do any official act as Chief Minister or for
showing or forbearing to show in the exercise of his official functions, favour
or disfavour to persons etc. To this complaint, the order granting sanction to
prosecute the accused made by the Governor of Maharashtra was annexed and
produced. After recording the verification of the complaint, the learned
Special Judge took cognizance of the offences and issued process by directing a
bailable warrant to be issued in the sum of Rs. 10,000 with one surety and made
it returnable on September 3, 1983.
On the process being served the accused
appeared and sought exemption from personal appearance which was granted for a
day and the case was adjourned to October 18, 1982 for recording the evidence
of the complainant and his witnesses for the prosecution.
When the case was called out on October 18,
1982 an application was moved on behalf of the accused inter alia contending
that the Court of the learned special Judge had no jurisdiction in view of the
provision contained in Sec. 7 of the Criminal Law Amendment Act, 505 1952
('1952 Act' for short) and that no cognizance can be taken of offences
punishable under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act on a private
complaint. The case was at that time pending in the Court of the special Judge
presided over by one Shri P.S. Bhutta. The learned special Judge by his order
dated October 20, 1982 rejected both the contentions and set down the case for
November 29, 1982 for recording evidence of the prosecution. The learned
special Judge made it abundantly clear that under no circumstance the case
would be adjourned on the next occasion and if any revision or appeal is
intended to be filed against the order, the learned counsel for the accused
should give advance notice to the learned counsel for the complainant.
The accused filed Criminal Revision
Application No. 510 of 1982 against the order of the learned special Judge
dated October 20, 1982 rejecting his application. On January 16, 1983, the
Government of Maharashtra issued a notification in exercise of the powers
conferred by sub-sec. (2) of Sec. 7 of 1952 Act and in modification of the
earlier Government order dated April 12, 1982, directing that in Greater Bombay
on and after the date of the notification the offences specified in sub-sec.
(1) of sec. 6 of the 1947 Act which are investigated by the Anti-Corruption
Bureau of Police in Greater Bombay, except special cases No. 14, 15 and 16 of
1977 and Special Case No. 31 of 1979 to 37 of 1979 (both inclusive) shall
continue to be tried by Shri R.B. Sule. The net outcome of this notification
was that Special Case No. 24 of 1982 pending in the Court of Special Judge Shri
P.S. Bhutta would stand transferred to the Court of Shri R.B. Sule, Additional
Special Judge for Greater Bombay.
On a reference by the learned Single Judge, a
Division Bench of the Bombay High Court heard and dismissed on march 7, 1983
Criminal Revision Application No. 510 of 1982 filed by the accused against the
order of learned special Judge Shri P.S. Bhutta dated October 20, 1982. The
Division Bench in terms held that the private com plaint was maintainable and
as the required notification has already been issued, Shri R.B. Sule will have
jurisdiction to try Special Case No. 24 of 1982. The learned trial Judge Shri
R.B. Sue on receipt of the record of the case issued a notice on April 27, 1982
calling upon all parties to appear before him on April 21, 1983. lt appears on
July 8, 1783, two applications were moved on behalf of the accused urging the
learned trial Judge; (i) to discharge the accused inter alia on the ground that
the charge was groundless and that even though the accused 506 had ceased to be
the Chief Minister, on the date of taking cognizance of the offences, he was a
sitting member of the Maharashtra Legislative Assembly and as such a public
servant and in that capacity a sanction to prosecute him would have to be given
by the Maharashtra Legislative Assembly and the sanction granted by the
Governor would not be valid in this behalf. The second petition requested the
learned Judge to postponed the case till the petition for special, leave field
by the accused against the decision of the Division Bench of the High Court
holding that the private complaint was maintainable is disposed of Both these
applications came up for hearing before Shri R.B. Sule, who by his order dated
July 25, 1783 upheld the contention of the accused that M.L.A was a public
servant within the meaning of the expression in Sec. 21 (12) (a) IPC and that
unless a sanction to prosecute him by the authority competent to remove him
from his office as M.L.A. was obtained which in the opinion of the learned
Special Judge.
was Maharashtra Legislative Assembly the
accused is entitled to be discharged. So saying, the learned Judge discharged
the accused. The complainant filed a petition for special leave to appeal No.
1850 of 1983 and a Writ Petition (Crl.) No. 145 of 3983 against the decision.
Of the learned special Judge. Both these matters came up before this Court on
August 3, 1983 when the matters were adjourned to August 10, 1983 to enable the
petitioner, original complainant to file a criminal revision application
against the order of the learned special Judge in the High Court. Accordingly,
the complainant filed Criminal Revision Application No. 354 of 1983 in the High
Court against the order of learned special Judge Shri R.B. Sule. This Court
ultimately granted special leave to appeal as also rule nisi in the writ petition.
By an order made by this Court, the criminal revision application filed by the
petitioner stands transferred to this Court.
It may be mentioned that this Court has
granted special leave to the accused against the decision of the Division Bench
of the Bombay High Court holding that a private complaint is maintainable etc.
Criminal Appeal No. 247 of 1983 arising out of the said special leave petition
is being heard along with this matter but that will be dealt with separately.
While discharging the accused, the learned
special Judge held that the material date for deciding the applicability of
Sec. 6 of the 1947 Act is the date on which the court is asked to take
cognizance of the offence.
Proceeding further it was held that even
though the accused had ceased to hold the office of the Chief Minister on the
date 507 on which cognizance was taken by the learned special Judge, Shri
Bhutta, yet on that date he was a sitting M.L.A. and was therefore a public
servant within the meaning of the expression in Sec. 21 (12)(a) in as much as
the M.L.A. is a person in the pay of the Government or at any rate he is
remunerated by fees for performance of public duty by the Government and
therefore, he is a public servant. As a corollary, the learned Judge held that
as on the date of taking cognizance of the offence the accused was a public
servant, he could not be prosecuted without a valid sanction as contemplated by
Sec. 6 of the 1947 Act. The learned Judge further held that the M.L.A. holds an
office and he can be removed from that office by the Legislative Assembly
because the latter has the power to expel a member which would amount to
removal from office. The learned Judge further held that as there was no
sanction by the Maharashtra Legislative Assembly to prosecute the accused and
as the Governor had no power to sanction prosecution of the accused in his
capacity as M.L.A. the accused is entitled to be discharged for the of offences
under Secs. 161, 165, 120-B, 109 IPC and Sec. 5 of the 1947 Act for want of a valid
sanction for prosecution, and in respect of the other offences, the accused is
entitled to be discharged on the ground that the court of the special Judge had
no jurisdiction to try the accused for those offences. In respect of those
other offences, the learned Judge directed the complaint to be returned to the,
complainant for presenting it to the proper court. It may be mentioned that by
a common order in Special Case No. 3 of 1983 instituted upon the complaint of
Mr. P.B. Samant, the accused was discharged.
Sec. 21 IPC defines a 'Public Servant'. The
relevant clauses may be extracted as under:
"21. The words 'public servant' denote a
person falling under any of the descriptions hereinafter following, namely:-
Third-Every Judge including any person empowered by law to discharge, whether
by himself or as a member of any body of persons, any adjudicatory functions.
Seventh: Every person who holds any office by
virtue of which he is empowered to place or keep any person in confinement
Twelfth-Every person- (a) in the service or pay of the Government or
remunerated 508 by fees or commission for the performance of any public duty by
the Government;
(b) in the service or Pay of a local
authority, a corporation establishes by or under a Central, Provincial or State
Act or a Government Company as defined in Section 617 of the Companies Act,
1956.
Explanation 1: Persons falling under any of
the above descriptions are public servants, whether appointed by the Government
or not" Sec. 17 defines the expression 'Government to denote the Central
Government or the Government of a State. Sec 14 defines the expression 'servant
of Government to denote any officer or servant continued, appointed or employed
in India by or under the authority of Government.
Sec. 19 defines the word 'Judge' as under:
"The word "Judge" denotes not
only every person who is officially designated as a Judge, but also every
person Who is empowered by law to give, in any legal proceeding, civil, or
criminal, a definitive judgment, or a judgment which if not appealed against,
would be definitive, or a judgment which, if confirmed by some other authority,
would be definitive, or who is one of a body of person, which body of persons
is empowered by law to give such a judgment."..
Sec. 7 provides that 'every expression which
is explained in any part of the Code (IPC), is used in every part of this Code
in conformity with the explanation.' Sec. 5 of the 1947 Act defines the offence
of criminal misconduct and a public servant who commits an offence of criminal
misconduct is liable to be punished with imprisonment for a term which shall
not be less than one year but which may extend to seven years and shall also
be- liable to fine.
Sec. 6 provides for a sanction as a
pre-condition for a valid prosecution for offences punishable under Sec. 161,
164, 165 IPC and Sec. 5 of the 1947 Act. It reads as under:
"6(1) No court shall take cognizance of
an offence punishable under Section 161 or Section 165 of the Indian Penal
Code, or under sub-section (2) of Section S of this Act, alleged to have been
committee by a public servant, except with the previous sanction, (a) in the
case of a person who is employed in connection with affairs of the Union and is
not removable from his office save by or with the sanction of the Central
Government, (b) in the case of a person who is employed in connection with the
affairs of a State and is not removable from his office save by or with the
sanction of the State Government, (c) in the case of ally other person, of the
authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt
arises whether the previous sanction as required under sub-section (1) should
be given by the Central or State Government or any other authority, such
sanction shall be given by that Government or authority which would have been
competent to remove the public servant from his office at the time when the
offence was alleged to have been committed".
With a view to eradicating the evil of
bribery and corruption, the Government of India set up a Committee to make
recommendations for the improvement of the laws relating to bribery and
corruption under the Chairmanship of Dr. Bakshi Tek Chand. The recommendations
of the Committee led to the enactment of the Criminal Law Amendment Act, 1952
By the 1952 Act, power was conferred on the State Government to appoint special
offences as may be necessary for such area or areas as may be specified in the
notification to try the following offences namely; offences punishable under
Sections 161, 162, 163, 164, 165 and 165A IPC and Sec. 5 of the 1947 Act and
any conspiracy to commit or any attempt to commit or any abetment of 510 any of
the offences hereinabove mentioned; See. 7 conferred exclusive jurisdiction on
the special Judges appointed under See. 6. Sub-sec. (2) of Sec. 7 provides for
specific territorial jurisdiction of a special Judge. Sub-sec. (3) conferred
power on the special Judge also to try any offence other than an offence
specified in. Sec. 6 with which the accused may, under the Code of Criminal
Procedure, 1898, be charged at the same trial. Sec. 8 prescribed the procedure
to be followed by the special Judge in the trial of the offences. The Court of
special Judge was deemed to be a Court of Sessions trying cases without a jury
within the local limits of the jurisdiction of the High Court for the purposes
of Chapter XXXI and XXXII of the Code of Criminal Procedure as provided by Sec.
9.
The appellant, the original complainant,
contends that the learned special Judge was in error in holding that M.L.A. is
a public servant within the meaning of the expression under Sec. 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 Sec. 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 Sec. 6 of the 1947 Act. lt 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 Sec. 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.
On behalf of the accused, it was contended
that not only the accused would be a public servant as falling within the
meaning of tile expression in Sec. 21(12)(a) but he would also be a public
servant within the contemplation of clauses (3) and (7) of Sec. 21. The next
limb of the argument was that if an accused hold plurality of Offices, each of
which confers on him the status of a public servant and even if it is alleged
that he has abused or misused one office as a public servant notwithstanding,
the fact that there no allegation of abuse or misuse of other office held as
public servant, sanction of each authority competent to remove him from each of
the offices would be a sine qua non under Sec. 6 before a valid prosecution can
be launched against the accused.
On these rival contentions some vitat and
some not so vital points arise for consideration, some easy of answer and some
none-too easy. For their scientific and logical treatment they may be
formulated.
(a) What is the relevant date with reference
to which a valid sanction is a pre-requisite for the prosecution of a public
servant for offences enumerated in Sec. 6 of the 1947 Act? (b) If the accused
holds plurally of offices occupying each of which makes him a public servant,
is sanction of each one of the competent authorities entitled to remove him
from each one of the offices held by him necessary and if anyone of the
competent authorities fails or declines to grant sanction, is the Court
precluded or prohibited from taking cognizance of the offence with which the
public servant is charged ? (c) Is it implicit in Sec. 6 of the 1947 Act that
sanction of that competent authority alone is necessary, which is entitled to
remove the public servant from the office which is alleged to have been abused
for misused for corrupt motives? (d) Is M.L.A. a public servant within the
meaning of the expression in Sec. 21(12)(a) IPC ? (e) Is M.L.A. a public
servant within the meaning of the expression in Sec.21(3) and Sec. 21(7) ICP ?
(f) Is sanction as contemplated by Sec. 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? Re. (a): The 1947 Act was enacted, as its
long title shows, to make more effective provision for the prevention of
bribery and corruption. Indisputably, therefore, the provisions of the Act must
receive 512 such construction at the hands of the court as would advance the
object and purpose underlying the Act and at any rate not defeat it. If the
words of the statute are clear and unambiguous, it is the plainest duty of the
court to give effect to the natural meaning of the words used in the provision.
The question of construction arises only in the event of an ambiguity or the
plain meaning of the words used in the statute would be self-defeating. The
court is entitled to ascertain the intention of the legislature to remove the
ambiguity or the plain meaning of the words used in the statute would be
self-defeating. The court is entitled to ascertain the intention of the
legislature to remove the ambiguity by construing the provision of the statute
as a whole keeping in view what was the mischief when the statute was enacted
and to remove which the legislature enacted the statute. This rule of
construction is so universally accepted that it need not be supported by
precedents. Adopting this rule of construction, whenever a question of
construction arises upon ambiguity or where two views are possible of a
provision, it would be the duty of the court to adopt that construction which
would advance the object underlying the Act namely, to make effective provision
for the prevention of bribery and corruption and at any rate not defeat it.
Section 6 bars the court from taking
cognizance of the offences therein enumerated allegel to have been committed by
a public servant except with the previous sanction of the competent authority
empowered to grant the requisite sanction. Sec. 8 of 1952 Act prescribes
procedure and powers of special Judge empowered to try offences set out in Sec.
6 of 1947 Act. Construction of Sec. 8 has been a subject of vigorous debate in
the cognate appeal. In this appeal we will proceed on the assumption that a
special Judge can take cognizance of offences he is competent to try on a
private complaint. Sec. 6 creates a bar to the court from taking cognizance of
offences therein enumerated except with the previous sanction of the authority
set out in clause (a), (b) & (c) of sub-Sec. (1). The object underlying
such provision was to save the public servant from the harassment of frivolous
or unsubstantiated allegations. The policy underlying Sec. 6 and similar
sections, is that there should not be unnecessary harassment of public servant.
(Sec C.R. Bansi v. State of Maharashtra(1)). Existence thus of a valid sanction
is a pre-requisite to the taking of cognizance of the enumerated offences
alleged to have been committed by a public servant. The bar is to the taking of
cognizance of offence by the court. Therefore, when the court is called upon to
take cognizances of such offences, it must enquire whether there is a valid
sanction to prosecute the public servant for the offence alleged to have been
committed by 513 him as public servant. Undoubtedly, the accused must be a
public servant when he is alleged to have committed the offence of which he is
accused because Sections 161, 164, 165 IPC and Sec. 5(2) of the 1947 Act
clearly spell out that the offences therein defined can be committed by a
public servant. If it is contemplated to prosecute public servant who has
committed such offences, when the court is called upon to take cognizance of
the offence, a sanction ought to be available otherwise the court would have no
jurisdiction to take cognizance of the offence. A trial without a valid
sanction where one is necessary under Sec. 6 has been held to be a trial
without jurisdiction by the court. (See R.R. Chari v. State of U.P.(1) and S.N.
Bose v. State of Bihar(2) In Mohd. Iqbal Ahmed v: State of A.P.(3), it was held
that a trial without a sanction renders the proceedings ab initio void. But the
terminus a quo for a valid sanction is the time when the court is called upon
to the cognizance of the offence. If therefore, when the offence is alleged to
have been committed, the accused was a public servant but by the time the court
is called upon to take cognizance of the offence committed by him as public
servant, he has ceased to be public servant, no sanction would be necessary for
taking cognizance of the offence against him. This approach is in accord with
the policy underlying Sec. 6 in that a public servant is not to be exposed to
harassment of a frivolous or speculative prosecution. If he has ceased to be a
public servant in the meantime, this vital consideration ceases to exist. As a
necessary corollary, if the accused has ceased to be a public servant at the
time when the court is called upon to take cognizance of the offence alleged to
have been committed by him as public servant, Sec. 6 is not attracted.
This aspect is not more res integra. In S.A.
Venkataraman v. The State(4) this Court held as under:
"In or opinion, in giving effect to the
ordinary meaning of the words used in s. 6 of the Act, the conclusion is
inevitable that at the time a court is asked to take cognizance not only the
offence must have been committed by a public servant but the person accused is
still a public servant removable from his office by a competent authority
before the provisions of s. 6 can apply. In the present appeals, admittedly,
the appellants had cease to be public servants alleged to have been committed
by them as public servants.
Accordingly, the provisions of s.6 of the Act
514 did not apply and the prosecution against them was not vitiated by the lack
of a previous sanction by a competent authority".
And this view has been consistently followed
in C.R. Bansi's case and K.S. Dharmadatan v. Central Government & Ors.(1)
It therefore appears well-settled that the relevant date with reference to
which a valid sanction is sine qua non for taking cognizance of an offence
committed by a public servant required by Sec. 6 is the date on which the court
is called upon to take cognizance of the offence of which he is accused.
The accused tendered resignation of his
office as Chief Minister and ceased to hold the office of Chief Minister with
effect from January 20, 1982. The complaint from which the present appeal
arises and which was registered as Criminal Case No. 24/82 appears to have been
filed on August 9, 1982 and the cognizance was taken by the learned Magistrate
on the same day. It unquestionably transpires that long before the date on
which the cognizance was taken by the learned special Judge, the accused had ceased
to hold the office of the Chief Minister and as such had ceased to be a public
servant. In other words, he was not public servant in his capacity as Chief
Minister on August 9, 1982 when the court took cognizance of the offence
against him. A fortiori no sanction as contemplated by Sec. 6 was necessary
before cognizance of the offence could be taken against the accused for
offences alleged to have been committed in his former capacity as public
servant. Re: (b) and (c): It was strenuously contended that if the accused has
held or holds a plurality of offices occupying each one of which makes him a
public servant, sanction of each one of the competent authorities entitled to
remove him from each one of the offices held by him, would be necessary and if anyone
of the competent authorities fails or declines to grant sanction, the court is
precluded or prohibited for taking cognizance of the offence with the public
servant is charged. This submission was sought to be repelled urging that it is
implicit in Sec. 6 that sanction of that authority alone is necessary which is
competent to remove the public servant from the office which he is alleged to
have misused or abused for corrupt motives. Sec. 6(1)(c) is the only provision
relied upon on behalf of the accused to contend that as M.L.A. he was a public
servant on the date of taking cognizance of the offences, and therefore,
sanction of that authority comepetent to remove him from that office is a since
qua non for taking cognizance of offences. Sec. 6 (1)(c) bars taking cognizance
of an 515 offence alleged to have been committed by public servant except with
the previous sanction of the authority competent to remove him from his office.
In order to appreciate the rival contentions
the fact situation relevant to the topic under discussion may be noticed. At a
general election held in 1980, accused was elected as Member of the Legislative
Assembly of Maharashtra State from Shrivardhan Assembly Constituency. He was
appointed as Chief Minister of Maharashtra State, and he was holding that
office at the time he is alleged to have committed the offences set out in the
complaint filed against him. He tendered his resignation of the office of the
Chief Minister and ceased to hold that office with effect from January 20,
1982. However, he continued to retain his seat as M.L.A. The contention is that
as M.L.A., he was a public servant, a submission seriously controverted, which
we would presently examine and that he was such public servant even on the date
on which the court took cognizance of the offences set out in the complaint
without a valid sanction and therefore the court had no jurisdiction to take
cognizance of the offences. In support of the submission it was urged that if
the policy underlying Sec. 6 and similar provisions like Sec. 197 Cr. P.C. was
to spare the harassment to the public servant consequent upon launching of
frivolous or speculative prosecutions, the same would be defeated if it is held
that the sanction to prosecute is necessary from an authority competent to
remove the public servant from the office which he is alleged to have misused
or abused. Proceeding along this line it was urged that even if the accused has
ceased to be a public servant in one capacity by ceasing to hold the office
which he is alleged to have misused or abused yet if he continued to be a
public servant in another capacity, the authority competent to remove him from
the latter office would have to decide whether the prosecution is frivolous or
speculative and in larger public interest to thwart it by declining to grant
the sanction. It was also urged that if a public servant has to discharge some
public duty and perform some public functions and he is made to cool his heels
in law courts, public interest would suffer by keeping him away from his public
duty and therefore, to advance the object underlying Sec. 6, the court must
hold that if the public servant who is being prosecuted holds more than one
public office occupying each one of which makes him public servants, a sanction
to prosecute of each competent authority entitled to remove him from each
office is necessitous before taking cognizance of offences against him. It was
urged that this approach would advance and 516 buttress the policy underlying
Sec. 6 and the contrary view would defeat the same.
Offences prescribed in Sec. 161, 164 and 165
IPC and Sec. 5 of the 1947 Act have an intimate and inseparable relation with
the office of a public servant. A public servant occupies office which renders
him a public servant and occupying the office carries with it the powers
conferred on the office. Power generally is not conferred on an individual
person. In a society governed by rule of law power is conferred on office or
acquired by statutory status and the individual occupying the office or on whom
status is conferred enjoys the power of office or power flowing from the
status. The holder of the office alone would have opportunity to abuse or
misuse the office. These sections codify a well-recognised truism that power
has the tendency to corrupt. It is the holding of the office which gives an
opportunity to use it for corrupt motives. Therefore, the corrupt conduct is
directly attributable and flows from the power conferred on the office. This
interrelation and interdependence between individual and the office he holds is
substantial and not serverable. Each of the three clauses of sub-s. (1) of Sec.
6 uses the expression `office' and the power to grant sanction is conferred on
the authority competent to remove the public servant from his office and Sec. 6
requires a sanction before taking cognizance of offences committed by public
servant. The offence could be committed by the public servant by misusing or
abusing the power of office and it is from that office, the authority must be
competent to remove him so as to be entitled to grant sanction. The removal
would bring about cessation of interrelation between the office and abuse by
the holder of the office. The link between power with opportunity to abuse and
the holder of office would be severed by removal from office. Therefore, when a
public servant is accused of an offence of taking gratification other than
local remuneration for doing or forbearing to do an official act (Sec. 161 IPC)
or as a public servant abets offences punishable under Secs. 161 and 163 (Sec.
164 IPC) or as public servant obtains a valuable thing without consideration
from person concerned in any proceeding or business transacted by such public
servant (Sec. 165 IPC) or commits criminal misconduct as defined in Sec. 5 of
the 1947 Act, it is implicit in the various offences that the public servant
has misused or abused the power of office held by him public servant. The
expression `offices' in the three sub-clauses of Sec. 6(1) would clearly denote
that office which the public servant misused or abused for corrupt motives for
which he is to be prosecuted and in respect of which a sanction to prosecute
him is necessary by the competent authority entitled to remove him from that
office which he has abused.
517 This interrelation between to office and
its abuse if serered would render Sec. 6 devoid of any meaning. An this
interrelation clearly provides a clue to the understanding of the provision in
Sec. 6 providing for sanction by a competent authority who would be able to
judge the action of the public servant before removing the bar, by granting
sanction, to the taking of the cognizance of offences by the court against the
public servant. Therefore, it unquestionably follows that the sanction to
prosecute can be given by an authority competent to remove the public servant
from the office which he has misused or abused because that authority alone
would be able to know whether there has been a misuse or abuse of the office by
the public servant and not some rank outsider. By a catena of decisions, it has
been held that the authority entitled to grant sanction must apply its mind to
the facts of the case, evidence collected and other incidental facts before
according sanction. A grant of sanction is not an idle formality but a solemn
and sacrosanct act which removes the umbrella of protection of government
servants against frivolous prosecutions and the aforesaid requirements must
therefore, be strictly complied with before any prosecution could be launched
against public servants. (See Mohd. Iqbal Ahmad v. State of Andhra Pradesh).
The Legislature advisedly conferred power on the authority competent to remove
the public servant from the office to grant sanction for the obvious reason
that that authority alone would be able, when facts and evidence are placed
before him, to judge whether a serious offence is committed or the prosecution
is either frivolous or speculative. That authority alone would be competent to
judge whether on the facts alleged, there has been an abuse or misuse of office
held by the public servant. That authority would be in a position to know what
was the power conferred on the office which the public servant hold, how that
power could be abused for corrupt motive and whether prima facie it has been so
done. That competent authority alone would know the nature and functions
discharged by the public servant holding the office and whether the same has
been abused or misused. It is the vertical hierarchy between the authority
competent to remove the public servant from that office and the nature of the
office hold by the public servant against whom sanction is sought which would
indicate a hierarchy and which would therefore, permit inference of knowledge
about the functions and duties of the office and its misuse or abuse by the
public servant. That is why the legislature clearly provided that that
authority alone would be competent to grant sanction which is entitled to
remove the public servant against whom sanction is sought from the office.
518 Now if the public servant holds two
offices and he is accused of having abused one and from which he is removed but
continues to hold the other which is neither alleged to have been used nor
abused, is a sanction of the authority competent to remove him from the office
which is neither alleged or shown to have been abused or misused necessary? The
submission is that if the harassment of the public servant by a frivolous
prosecution and criminal waste of his time in law courts keeping him away from
discharging public duty, are the objects underlying Sec. 6, the same would be
defeated if it is held that the sanction of the latter authority is not
necessary. The submission does not commend to use. We fail to see how the
competent authority entitled to remove the public servant from an office which
is neither alleged to have been used or abused would be able to decide whether
the prosecution is frivolous or tendentious. An 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 Sec. 6 would not be necessary;
but if after committing the offence and
before the date of taking of cognizance of the offence, he was elected as a
Municipal President in which capacity he was a public servant under the
relevant Municipal law, and was holding that office on the date on which court
proceeded to take cognizance of the offence committed by him as a Minister,
would a sanction be necessary and that too of that authority competent to
remove him from the office of the Municipal President. The answer was in
affirmative. But the very illustration would show that such cannot be the law.
Such an interpretation of Sec. 6 would render it as a shield to an unscrupulous
public servant. Someone interested 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 Sec.
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 519 must at all costs be interpreted in such a way
that it would not operate as a rougue's charter. (See Davis & Sons Ltd. v. Atkins)
Support was sought to be drawn for the submission from the decision of the
Andhra Pradesh High Court in Air Commodore Kailash Chand v. The State (S.P.E.
Hyderabad)(2) and the affirmance of that decision by this Court in The State
(S.P.E. Hyderabad) v. Air Commodore Kailash Chand.(3) In that case accused
Kailash Chand was a member of the Indian Air Force having entered the service
on 17th November 1941. He retired from the service on 15th June, 1965, but was
re-employed for a period of 2 years with effect from 16th June, 1965. On 7th
September, 1966, the respondent was transferred to the Regular Air Force
Reserve with effect from June 16, 1965 to June 15, 1970 i.e. for a period of 5
years. On 13th March, 1968, the re-employment given to the respondent ceased
and his service was terminated with effect from April 1, 1968. A charge-sheet
was submitted against him for having committed an offence under Sec. 5(2) of
the Prevention of Corruption Act, 1947 during the period March 29, 1965 to
March 16, 1967. A contention was raised on behalf of the accused that the court
could not take cognizance of the offence in the absence of a valid sanction of
the authority competent to remove him from the office held by him as a public
servant. The learned special Judge negatived the contention. In the revision
petition filed by the accused in the High Court, the learned Single Judge held
that on the date of taking cognizance of the offence, the accused was a member
of the Regular Air Force Reserve set up under the 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 that cognizance of the offences and the prosecution was quashed. In
the appeal by certificate, this Court upheld the decision of the High Court.
This Court held following the decision in S.A. Venkataraman's case that if the
public servant had ceased to be a public servant at the time of taking
cognizance of the offence, Sec. 6 is not attracted. Thereafter the court
proceeded to examine whether the accused was a public servant on the date when
the court took cognizance of the offence and concluded that once the accused
was transferred to the Auxiliary Air Force, he retained his character as a
public servant because he was required to undergo training and 520 to be called
up for service as and when required. The court further held that as such the
accused was a public servant as an active member of the Indian Air Force and a
sanction to prosecute him under Sec. 6 was necessary. This decision is of no
assistance for the obvious reason that nowhere it was contended before the
court, which office was alleged to have been abused by the accused and whether
the two offices were separate and distinct. It is not made clear whether the
accused continued to hold the office which was alleged to have been abused or
misused even at the time of taking cognizance of the offence. But that could
not be so because the service of the accused was terminated on April 1, 1968
while the cognizance was sought to be taken in June, 1969.
Indisputably, the accused had ceased to hold
that office as public servant which he was alleged to have misused or abused.
The court was however, not invited to consider the contention canvassed before
us. Nor was the court informed specifically whether the subsequent office held
by the accused in that case was the same from which his service was terminated
meaning thereby he was re-employed to the same office. The decision appears to
proceed on the facts of the case. We would however, like to make it abundantly
clear that if the two decisions purport to lay down that even if a public
servant has ceased to hold that office as public servant which he is alleged to
have abused or misused for corrupt motives, but on the date of taking
cognizance of an offence alleged to have been committed by him as a public
servant which he ceased to be and holds an entirely different public office
which he is neither alleged to have misused or abused for corrupt motives, yet
the sanction of authority competent to remove him from such latter office would
be necessary before taking cognizance of the offence alleged to have been
committed by the public servant while holding an office which he is alleged to
have abused or misused and which he has ceased to hold, the decisions in our
opinion, do not lay down the correct law and cannot be accepted as making a
correct interpretation of Sec. 6.
Therefore, upon a true construction of Sec.
6, it is implicit therein that sanction of that competent authority alone would
be necessary which is competent to remove the public servant from the office
which he is alleged to have misused or abused for corrupt motive and for which
a prosecution is intended to be launched against him.
In the complaint filed against the accused it
has been repeatedly alleged that the accused as Chief Minister of Maharashtra
State accepted gratification other than legal remuneration from various sources
521 and thus committed various offences set out in the complaint. No-where, not
even by a whisper, it is alleged that the accused has misused or abused for
corrupt motives his office as M.L.A. Therefore, it is crystal clear that the
complaint filed against the accused charged him with criminal abuse or misuse
of only his office as Chief Minister. By the time, the court was called upon to
take cognizance of the offences, so alleged in the complaint, the accused had
ceased to hold the office of the Chief Minister.
On this short ground, it can be held that no
sanction to prosecute him was necessary as former Chief Minister of Maharashtra
State. The appeal can succeed on this short ground. However, as the real bone
of contention between the parties was whether as M.L.A. the accused was a
public servant and the contention was canvassed at some length, we propose to
deal with the same.
The learned special Judge held that the
accused as M.L.A. is a public servant because he is in the pay of the
Government or he is remunerated by feces for the performance of public duty by
the Government. The learned special Judge simultaneously rejected the
contention canvassed on behalf of the accused that the accused is a public
servant because he is a person empowered by law to discharge as a member of a
body of persons adjudicatory functions as contemplated by the Third clause of
Sec. 21.
Re: (d): We would first examine the
correctness or otherwise of the finding of the learned special Judge whether
the accused as M.L.A. was in the pay of the Government or was remunerated by
fees for the performance of any public duty by the Government so as to be
clothed with the status of a public servant within the meaning of cl. (12)(a)
of Sec. 21 IPC. C1. (12)(a) provides that every person in the service or pay of
the Government or remunerated by fees or commission for the performance of any
public duty by the Government would be a public servant. The three limbs of cl.
(12)(a) according to the learned special Judge are:
(i) Every person in the service of the
Government; or (ii) Every person in the pay of the Government; or (iii) Every
person remunerated by fees or commission for the performance of any public duty
by the Government.
If any person falls in any of the three limbs
according to the 522 learned special Judge, he would be a public servant within
the meaning of the expression in Sec. 21. IPC.
It was conceded before the learned special
Judge and not retracted before us that the case of the accused does not fall in
the first limb i.e. the accused as M.L.A. could not be said to be in the
service of the Government. The contention is that the accused while receiving
his salary as M.L.A. under the Maharashtra Legislature Members' Salaries and
Allowances Act, 1956 was and is in the pay of the Government. The second limb
of the submission was that even if the pay which the accused received as M.L.A.
under the relevant Act would not make the accused a person in the pay of the
Government, nevertheless the pay received by him would be the remuneration
which the accused would receive for performance of public duty from the Government.
It was contended on behalf of the complainant that the expression `in the pay
of the Government' would, in the context in which the expression is used in
Sec. 21(12)(a), mean only one thing that the payment must be by a master to a
servant and unless there is relationship of master and servant or relationship
of command and obedience between the payer and the payee, mere payment even if
styled as pay would not mean that the payee is in the pay of the payer.
Proceeding along it was submitted that M.L.A. could not be said to be subject
to obedience of any command by the Government, and therefore the accused as
M.L.A. could not be said to be `in the pay of the Government'. And as regards
the third limb, it was urged that the accused as M.L.A. was not performing any
public duty for the performance of which he was remunerated by the Government.
Additionally, it was urged that the expression `Government' in cl. (12) (a)
must receive the same meaning assigned to it in Sec. 17 IPC meaning thereby
that it denotes the Central Government or the Government of a State as the
context requires. It was urged that in that sense the expression `Government'
in cl. (12) (a) would mean `Executive Government' and it would be adding insult
to injury if it can ever be said that M.L.A. is in the pay of the Executive
Government or State Government. On behalf of the accused these submissions were
repelled by urging that the use of word `or' signifies a disjunctive and not
conjunctive and that viewed from this angle the first part of cl. (12) (a) `in
the service of the Government' would import the notion of master servant or
command obedience relationship, but the expression `in the pay of the
Government' would signify someone other than that included in the first limb
and as the legislature could not be accused of tautology or redundancy the
expression `in the pay of the Government' would exclude any notion of master
servant or command obedience relationship. It was submit- 523 ted that
conceivably there can be a person in the service of the Government though not
paid by the Government and conversely there can be a person `in the pay of the
Government' without being in the service of the Government.
It was also submitted on behalf of the
accused that it would be constitutional impertinence to say that M.L.A. does
not perform any public duty. His duty may be political or moral as urged on
behalf of the complainant but it is nonetheless a constitutional duty which he
is performing and that duty would be comprehended in the expression `public
duty' in cl. (12) (a). As a corollary it was submitted that the remuneration in
the form of pay which the accused receives and has been receiving since he
ceased to be the Chief Minister under the relevant Act is remuneration for the
performance of the public duty by the Government. The neat question that
emerges on the rival contentions is one of construction of the expression `in
the pay of' and the expression `Government' in cl. (12) (a).
At the threshold learned counsel for the
accused sounded a note of caution that the Court should steer clear of the
impermissible attempt of the appellant to arrive at a true meaning of
legislative provision by delving deep into the hoary past and tracing the
historical evolution of the provision awaiting construction. It was submitted
with emphasis that this suggested external aid to construction falls in the
exclusionary rule and cannot be availed of.
Therefore, it has become necessary to examine
this preliminary objection to the court resorting to this external aid to
construction. Sec. 21 (12) (a) acquired its present form in 1964.
Mr. Singhvi contended that even where the
words in a statute are ambiguous and may be open to more than one meaning or
sense, a reference to the debates in Parliament or the report of a Commission
or a Committee which preceded the enactment of the statute under consideration
is not a permissible aid to construction. This is what is called the
exclusionary rule. In support of the submission, reliance was placed upon Assam
Railways and Trading Co. Ltd. v.
Inland Revenue Commissioners (1) in which the
House of Lords declined to look into the Report of the Royal Commission on
Income tax in order to ascertain the meaning of certain words in the Income Tax
Act, 1920 on the ground that no such evidence for the purpose of showing the
intention, that is the purpose or object, of an Act is admissible. The
intention of the legislature must be ascertained from the words of the 524
statute which such extraneous assistance as is legitimate.
This view appears to have been consistently
followed in United Kingdom because in Katikiro of Buganda v. Attorney
General(1), the Privy Council held in agreement with the Court of Appeal of
Eastern Africa that the contents of the White Paper were not admissible in
evidence for the purpose of construing the schedule. Similarly in Central
Asbestos Co. Ltd. v. Dodd the House of Lords declined to look at the Committee
Report which preceded the drafting of the Act. In the Administrator General of
Bengal v. Premlal Mullick & Ors(3), the Privy Council disapproved the
reference to the proceeding of the Legislature which resulted in the passing of
the Act II of 1874 as legitimate aids to the construction of Sec. 31 by the
Appeal Bench of Calcutta High Court.
Relying on these decisions, a valiant plea
was made to persuade us not to depart from this well accepted proposition of
law in England. The trend of law manifested by these decisions broadly indicate
that in the days gone by the courts in England were of the view that reference
to the recommendations of a Commission or Committee appointed by the Government
or statements in White Paper which shortly preceded the statute under
consideration were not legitimate aids to construction of the statute even if
the words in the statute were ambiguous.
The trend certainly seems to be in the
reverse gear in that in order to ascertain the true meaning of ambiguous words
in a statute, reference to the reports and recommendations of the Commission or
Committee which preceded the enactment of the statute are held legitimate
external aids to construction. The modern approach has to considerable extent
roded the exclusionary rule even in England. Constitution Bench of this Court
after specifically referring to Assam Railways and Trading Co. Ltd. v. I.R.C.
in State of Mysore v. R.V. Bidap(4) observed
as under:
"The trend of academic opinion and the
practice in the European system suggest that interpretation of a statute being
exercise in the ascertainment of meaning, everything which is logically
relevant should be admissible..... .........There is a strong case for
whittling. down the Rule of Exclusion followed in the British courts and for
less apologetic reference to legislative proceedings and like materials to read
the meaning 525 of the words of a statute. Where it is plain, the language
prevails, but where there is obscurity or lack of harmony with other provisions
and in other special circumstances, it may be legitimate to take external
assistance such as the object of the provisions, the mischief sought to be
remedied., the social context, the words of the authors and other allied
matters." Approaching the matter from this angle, the Constitution Bench
looked into the proceedings of the Constituent Assembly and "The Framing
of India's Constitution; A Study' by B. Shiva Rao. It was however urged that
before affirmatively saying that in Bidap's case this Court has finally laid to
rest this controversy, the court may refer to Commissioner of Income Tax,
Andhra Pradesh, Hyderabad v. Jaya Lakshmi Rice and oil Mills Contractor Co.(1)
At page 368 a bench of three Judges of this Court without so much as examining
the principle underlying the exclusionary rule dissented from the view of the
High Court that the report of the Special Committee appointed by the Government
of India to examine the provisions of the Bill by which Sec. 26A was added to
the Income-tax Act, 1922 can be taken into consideration for the purpose of
interpreting relevant provisions of the Partnership Act. However it may be stated
that the Court did not refer to exclusionary rule.
It dissented from the view of the High Court
on the ground that the statement relied upon by the High Court was relating to
clause 58 corresponding to Sec. 59 of the Partnership. Act and that statement
cannot be taken into consideration for the purpose of interpreting the relevant
provisions of the Partnership Act. This decision was not noticed in Bidap's
case but the decision in Assam Railways & Trading Co. Ltd relied upon by
Mr. Singhvi was specifically referred to. This decision cannot therefore be
taken as an authority for the proposition canvassed by Mr. Singhvi.
Further even in the land of its birth, the
exclusionary rule has received a serious jolt in Black-Clawson International
Ltd. v. Paperwork Waldhef Ascheffenburg AC(2) Lord Simon of Claisdale in his
speech while examining the question of admissibility of Greer Report observed
as under:
"At the very least, ascertainment of the
statutory objective can immediately eliminate many of the possible meanings
that the language of the Act might bear and if 526 an ambiguity still remains,
consideration of the statutory objective is one of the means of resolving it.
The statutory objective is primarily to be
collected from the provisions of the statute itself. In these days, when the
long title can be amended in both Houses, I can see no reason for having
recourse to it only in case of an ambiguity-it is the plainest of all the
guides to the general objectives of a statute. But it will not always help as
to particular provisions. As to the statutory objective of these a report.
leading to the Act is likely to be the most potent aid and, in my judgment, it
would be more obscurantism not to avail oneself of it. here is, indeed clear
and high authority that it is available for this purpose".
And in support of this statement of law, a
number of cases were relied upon by the learned Law Lord. It may also be
mentioned that Per Curiam it was held that "where there is an ambiguity in
a statute, the court may have regard to the Report of a Committee presented to
Parliament containing proposals for legislation which resulted in the enactment
of the statute, in order to determine the mischief which the statute was
intended to remedy". Though the unanimous view was that the report of a
committee presented to Parliament preceding the statute could be seen for
finding out the then state of the law and the mischief required to be remedied,
it must be stated that the majority were of the opinion that report could not be
looked at to ascertain the intention of Parliament. The minority (per Lord
Dilporne and Lord Simon) were of the opinion that when a draft bill was enacted
in a statute without any alteration, Parliament clearly manifested its
intention to accept committee's recommendation which would imply that
Parliament's intention was to do what committee wanted to achieve by its
recommendations. A reference to Halsbury's Laws of England, Fourth Edition,
Vol. 44 paragraph 901, would leave no one in doubt that 'reports of commissions
or committees preceding the enactment of a statute may be considered as showing
the mischief aimed at and the state of the law as it was understood to be by
the legislature when the statute was passed.' In the footnote under the
statement of law cases quoted amongst others are R. v. Ulugboja(1) R. v.
Blexham(2) in which Eigth report of Criminal Law Revision Committee was
admitted as an extrinsic aid to construction. Therefore, it can be confidently
said that the exclusionary rule is flickering in its 527 dying embers in its
native land of birth and has been given a decent burial by this Court. Even
apart from precedents the basic purpose underlying all canons of construction
is the ascertainment with reasonable certainty of the intention of Parliament
in enacting the legislation. Legislation is enacted to achieve a certain
object. The object may be to remedy a mischief or to create some rights,
obligations or impose duties. Before undertaking the exercise of enacting a
statute, Parliament can be taken to be aware of the constitutional principle of
judicial review meaning thereby the legislation would be dissected and
subjected to microscopic examination. More' often an expert committee or a
Joint Parliamentary committee examines the provisions of the proposed
legislation. But language being an inadequate vehicle of thought comprising
intention, the eyes scanning the statute would be presented with varried
meanings. If the basic purpose underlying construction of a legislation is to
ascertain the real intention of the Parliament, why should the aids which
Parliament availed of such as report of a special committee preceding the
enactment, existing state of law, the environment necessitating enactment of
legislation, and the object sought to be achieved, be denied to court whose
function is primarily to give effect to the real intention of the Parliament in
enacting the legislation.
Such denial would deprive the court of a
substantial and illuminating the to construction. Therefore, departing from the
earlier English decisions we are of the opinion that reports of the committee
which preceded the enactment of a legislation, reports of Joint Parliamentary
Committee, report of a commission set up for collecting. information leading to
the enactment are permissible external aids to construction. In this
connection, it would be advantageous to refer to a passage from Crawford on
Statutory Construction (page 388). It reads as under:
"The judicial opinion on this point is
certainly not quite uniform and there are American decisions to the effect that
the general history of a statute and the various steps leading upto an
enactment including amendments or modifications of the original bill and
reports of Legislative Committees can be looked at for ascertaining the
intention of the legislature where it is in doubt but they hold definitely that
the legislative history is inadmissible when there is no obscurity in the
meaning of the statute".
In United States v. St.Paul M.M. Rly. Co.(1)
it is observed that 528 the reports of a committee, including the bill as
introduced, changes 'made in the frame of the bill in the course of its passage
and the statement made by the committee chairman incharge of it, stand upon a
different footing, and may be resorted to under proper qualifications'. The
objection therefore of Mr. Singhvi to our looking into the history of the
evolution of the section with all its clauses, the Reports of Mudiman Committee
and K Santhanam Committee and such other external aids to construction must be
overruled.
Tracing the history of cl. (2) of Sec. 21 IPC
with a view to ascertaining whether M.L.A. would be comprehended in any of the
clauses of Sec. 12 so as to be a public servant, it must be noticed at the
outset that Indian Penal Code is a statute of the year 1860 when there were no
elected legislatures and a fortiori there were no M.L.As. Even if Moaulay is to
be adjudged a visionary, who could look far beyond his times yet in 1860 it was
inconceivable for him to foresee the constitutional development of India stages
by stages and to envisage the setting up elected legislatures, the members of
which would without anything more be comprehended as public servant in any of
the subclauses of Sec. 21. Undoubtedly, framing of a legislation is generally not
of a transient nature but it is enacted and put on the statute book for
reasonably long period until the society for which it is meant undergoes a
revolutionary transformation so as to make the law irrelevant or otiose. A
visionary can fores possible changes which may be inter- connected with the
present situation one leading to the other. But the East India a Company rule
which had just ended in 1857 after the first war of independence, it was
difficult to divine the possible revolutionary changes that may come in by
1919. At any rate at the time when the Indian Penal Code was enacted. there was
no elected legislature and therefore, there was no M.L.A. In construing a
statute more especially the ancient statute, the court may look at the
surrounding circumstances when the statute was enacted. In Halsbury's Laws of
England, Fourth Edition, Vol. 44 paragraph 898, it is observed that the
construction of ancient statutes may be eludicated by what in the language of
the courts is called contemporanea expositio, that is, by seeing how they were
understood at the time when they were passed, Undoubtedly, this doctrine cannot
be applied to modern statutes or indeed to any statute whose meaning appears to
the court to be plain and unambiguous. At any rate, one can justifiably say
that M.L.A. could not be comprehended in any of the clauses of Sec. 21 to be a
public servant when the Indian Penal Code was enacted in 1860.
529 The next stage in the historical
evolution of the law with regard to corrupt actions of members of public bodies
is the one to be found in a Bill introduced in 1925 called Legislative Bodies
Corrupt Practices Act, 1925. This Bill was introduced to give effect to the
recommendations of the Reforms Enquiry Committee known as Mudiman Committee. In
the book 'Evolution of Parliamentary Privileges' by Shri S.K. Nag, the author
traced the steps which led to the introduction of the Bill. In the statement of
objects and reasons accompanying the Bill, it was stated that the corrupt
influencing of votes of members of the legislature by bribery, intimidation and
like should be made penal offences under the ordinary criminal law and para 124
indicates that this recommendation was a unanimous recommendation of the
Committee as a whole. Then comes the more important statement which may be
extracted:
"The tender of a bribe to, or the
receiving of a bribe by, a member of a legislature in India as an inducement
for him to act in a particular manner as a member of the legislature is not at
present an offence." The Bill sought to fill in the lacuna. It thus
follows that till 1925, it was clearly understood that the M.L.A. as the holder
of that office which must have come into existence by the time under the
Government of India Act, 1919, was not a public servant falling in any of the
clauses of Sec. 21 and this lacuna was sought to be remedied by introducing
Chapter 9-B bearing the heading of offences by or relating to members of
Legislature Bodies'. The dictionary clause in the Bill would have included
M.L.A. in the expression "Member of Legislative Bodies. The object of the
Bill was to provide for punishment of corrupt practice by or relating to
members of Legislative Bodies constituted under the Government of India Act.
This was to be passed by the Central Legislature. It was an abortive attempt by
members themselves to be brought within the purview of the penal law. One can
write a finale by saying that the Bill was not enacted into law. That is the
second stage in the history of evolution.
Before we proceed further in the journey, it
is necessary to take note of one intermediate stage to which our attention was
not drawn during the arguments. In Prevention of corruption Act, 1947 by Sethi
and Anand at page 50, it is mentioned that till Criminal Law (Amendment) Act, 1958
(Act No. II of 1958) was put on the statute book, Sec. 21 of the IPC consisted
only of eleven clauses. Clause 12 530 was introduced by the aforementioned Act
and it read 'Every officer in the service or pay of a local authority or of a
Corporation engaged in any trade or industry which is established by a Central,
Provincial or state Act or of a Government Company as defined in Sec. 617 of
the Companies Act, 1956'. Obviously, as incorporated clause 12 would not
comprehend M.L.A. and cl 9 as it stood till then, could not have comprehended
him as would be presently pointed out. Cl.
12 introduced by Act II of 1958 is re-enacted
as cl.12 (b) and it is nobody's case that M.L.A. is covered in cl. 12 (b).
The next stage of development ma/ now be
noticed. While participating in the debate on the demand. for grants for the
Ministry of Home affairs in June 1962, some members of the Lok Sabha
specifically referred to the growing menace of corruption in administration. In
reply to the debate, the then Home Minister suggested that some Members of
Parliament and if possible some other public men do sit with the officers in
order to review the problem of corruption and make suggestions. Pursuant to
this announcement, a Committee chaired by Shri K.Santhanam, M.P. was appointed
with nine specific terms of reference which inter alia included: "to
suggest changes which would ensure speedy trial of cases of bribery, corruption
and criminal misconduct and make the law otherwise more effective'. This
Committee submitted its report on March 31 1964. While examining the fourth
term of reference extracted hereinabove, the Committee in Section 7 of its
report considered the question of proposed amendment to Indian Penal Code. The
Committee focussed its attention on the definition of 'public servant' in Sec.
21. Paragraph
7.6 is most important for the present
purpose. It reads as under:
"7.6 Section 21 defines "public
servant' Twelve categories of public servants have been mentioned but the
present definition requires to be enlarged. The ninth category describes a
large variety of officers charged with the performance of different kinds, of
duties relating to pecuniary interests of the State.
The last sentence of this category, namely,
"every officer in the service or pay of the Government or remunerated by
fees or commission for the performance of any public duty" should be put
as a general definition. After the word "government", he towards
"local authority", "public corporation", or
"government company" should be added.' The words "engaged in any
trade or industry" may also be deleted from the twelfth clause of Section
21 as these words 531 have a restrictive. effect. It should also be made clear
that all Ministers, Ministers of State Deputy Ministers, Parliamentary
Secretaries and members of local authorities come under the definition of
'public servant' A further category should be added to included all persons
discharging adjudicatory functions under any Union or State Law for the time
being in force. We also consider it necessary to include the following
categories within the definition of the term 'public servant':- President,
Secretary and all members of Managing Committee of a registered Co-operative
Society;
Office bearers and employees of educational,
social, religious and other institutions, in whatever manner established, which
receive aid in any form from the Central or State Government".
This recommendation led to three important
amendments in cls. 3, 9 and 12 of Sec. 21. The unamended clauses and the effect
of the amendment in 1964 must be brought out in sharp contrast so as to
appreciate the change made and its effect on the language employed.
Clause as they stood prior to Amended by the
1964 the 1964 Amendment Amendment.
------------------------------------------------------------
Third: Every Judge. Third: Every Judge in- including any person empo- wered by
law to discharge, whether by himself or as a member of any body of per- sons,
any adjudicatory functions;
Ninth:: Every officer whose duty Ninth: Every
officer it is, as such officer to take, whose duty it is, as such receive keep
or expend any officer to take, receive, property of the Government, keep, or
expend any property or to make any survey, on behalf of the Government,
assessment, or contract on or to make any survey, as- behalf of the Government
or to sessment or contract on be- execute any revenue-process, half of the
Government or to or to report, on any matter affec- 532 ting the pecuniary
interest of execute any revenue-process, the Government or to make or to
investigate, or to authenticate or keep any docu- report, on any matter affec-
ment relating to the pecuniary ting the pecuniary interest interest of the
Government, of the Government or make or to prevent he infraction of
authenticate or keep any any law for the protection of document relating to the
of the pecuniary interests of pecuniary interests of the Government, and every
Government, or to prevent officer in the service or pay the infraction of any
law of the Government or remunerated for the protection of the by fees or
commission for pecuniary interest of the performance of any public Government.
duty.
(Underlining ours);
Twelfth: Every officer in the Twelfth: Every
person:
service or pay of a local auth- (a) in the
service or pay of or of a corporation the Government or remuneration engaged in
any trade or industry rated by fees or commission which is established by a for
the performance of any Central, Provincial or State public duty by the Actor of
a Government Company as defined in section 617 of the Companies Act, 1956.
(b) in the service or pay of local authority,
a corporation established by or under Central, Provincial or State Act or a
Government Company as defined in section 617 of the Companies Act, 1956.
A bare comparison of the two cls. (9) and
(12) would reveal the change brought by the Amending Act 40 of 1964.
The last part (underlined portion) in the unamended
cl. (9):
'every officer in the service or pay of the
Government or remunerated by fees or commission for the performance of any
'public duty' has been severed from the 9th clause and incorporated as an
independent clause (12) (a). The original clause (12) was deleted and has been
re-enacted, as cl. (12) (b) with minor modifications. This history of
development is noteworthy for a very compelling reason to be presently
mentioned.
533 discretionary power and this included
Minister both Cabinet and State, Deputy Ministers and parliamentary
Secretaries.
M.L.As were not considered holding political
offices capable of abuse of power. The Committee recommended amendment of the
definition of the expression 'public servant in Sec. 21 IPC so as to include Ministers
of all rank of Central and State level and Parliamentary Secretaries in the
definition of 'public servant'. The Committee did not recommend that the
proposed amendment should comprehend M.L.A. The Committee separately dealt with
the M.L.As in paragraph 11.4 in Sec. 11 of the Report'. After stating that,
'next to the Minister, the integrity of Members of Parliament and of
legislatures in the State will be a great factor in creating a favourable
social climate against corruption...... It is desirable that a Code of Conduct
for legislators embodying these and other principles should be framed by a
special committee of representatives of Parliament and the legislatures
nominated by the Speakers and Chairman. This Code should be formally approved
by resolutions of Parliament and the legislatures and any infringement of the
Code should be treated as a breach of privilege to be inquired into by the
Committee of privileges, and if a breach is established, action including
termination of membership may be taken. Necessary sanctions for enforcing the
Code of Conduct should also be brought into existence".
The Government minutely examined the Report.
The recommendations of the Committee which were accepted by the Government led
to the introducing of The Anti-Corruption Laws (Amendment) Bill 1964 (Bill No.
67 of 1964) in the Parliament. The salient features of the Bill worth-noticing
are that cl. (3) of Sec. 21 was proposed to be amended as recommended with
minor structural change. Cl. (9) of Sec 21 was dissected as recommended and its
last part 'and every officer in the service are pay of the Government or
remunerated by fees or commission for the performance of any public duty' was
detached and re-enacted as cl. (12) (a) and the original cl. (12) was renumbered
as Cl. (12) (b) with slight modification. This would imply that no attempt was
made to bring in M.L.A. within the conspectus of clause in Sec. so as to make
him public servant. The position of the Minister was slightly fluid but a clear
picture emerged during the debate on the Bill in the Lok Sabha. Mr. Hathi
Minister-in-charge while piloting the Bill, on November 7, 1964 amongst others
stated that they will not deal with those recommendations which had not been
accepted by the Government, but would explain them later, if any point is
raised in that behalf, (See Lok Sabha Debates (Third 534 that he will not deal
with those recommendations which had not been accepted by the Government, but
would explain them later, if any point is raised in that behalf. (See Lok Sabha
Debates (Third Series), Vol. XXXV, Col. 245) While replying to the debate, Mr.
Halhi stated that the code of conduct has already been evolved for Ministers
because the recommendation of Santhanam Committee for including Ministers of
all ranks and Parliamentary Secretaries in the definition of 'public servant'
was not accepted by the Government. But there is an interesting caveat to this
statement to which we would presently revert He further stated that the
specific recommendations about the definition 'public servant' to include
Ministers has not been accepted and included in the Bill because Ministers are
not merely public servants but they have a greater moral and social
responsibility towards the people. Later on in the debate it was conceded that
the Minister is already included in the definition of 'public servant' even
before the proposed amendment in view of the decision of the Supreme Court in
Shiv Bahadur Singh's case in which Minister was held to be a public servant. It
was further stated that in view of this judgment, the Government was advised
that the recommendation of the Santhanam Committee for inclusion specifically
of Ministers of all rank and Parliamentary Secretaries was redundant. (Sec Lok
Sabha Debates (Third Series) Vol. 35 cols. 729 and 731). Whatever that may be
the conclusion is inescapable that till 1964 at any rate M.L.A.
was not comprehended in the definition of
'public servant' in Sec. 21. And the Santhanam Committee did not recommend its
inclusion in the definition of public servant, in Sec. Bill No. 47 of 1964 was
enacted as Act 40 of 1964. Now if prior to the enactment of Act 40 of 1964
M.L.A. was not comprehended as a public servant in Sec. 21, the next question
is: did the amendment make any difference in his position. The amendment keeps
the law virtually unaltered.
Last part of cl.9 was enacted as cl. 12 (a).
If M.L.A. was not comprehended in clause 9 before its amendment and dissection,
it would make no difference in the meaning of law if a portion of cl. 7 is
re-enacted as cl. 12 (a). It must follow as a necessary corollary that the
amendment of Cls. (9) and (12) by Amending Act 40 of 1964 did not bring about
any change in the interpretation of cl. (9) and cl.
(12)(a) after the amendment of 1964. In this
connection, it would be advantageous to refer to G.A. Monterio v. The State of
Ajmer(1) followed and approved in The State of Ajmer v. Shiji Lal(2) in both of
535 which cl. (9) as it stood prior to its amendment came up for construction.
In the first mentioned case, the accused was a chaser in the Railway Carriage
Workshop at Ajmer. He was held to be an officer in the pay of the Government,
comprehended in the last part of cl. (9) of Sec. 21 as it then stood. In the
second case, accused was a teacher in a railway school at Phulera. His
contention had found favour with the learned Judicial Commissioner but in
reaching the conclusion, he appeared to have ignored the last part of cl.(9)
prior to its amendment in 1964. In the appeal by the State, this Court held that
the case of the accused would be covered by the last part of cl. (9) because
the accused fulfilled the twin conditions of either being in the service or pay
of the Government and was entrusted with the performance of a public duty. It
may also be mentioned that the last three words 'by the Government' found in
cl. (12) (a) after the amendment were not there in the last part of cl. 9'. The
question was whether addition of words 'by the Government' made any difference
in the interpretation of last part of cl. (9) which is substantially re-enacted
as cl. (12)(a). The Gujarat High Court in Manshanker Prabhashanker Dwivedi and
Anr. v. The State of Gujarat (1) trace the history of amendment that payment by
the Government was implicit in cl. (9) through the words 'by the Government'
were not there and were added to cl. (12)(a) after re-enacting the last part of
cl. (9) as (12)(a). This becomes clear from the decision of this Court in the
appeal against the judgment of the Gujarat High Court in the State of Gujarat
v. Manshanker Prabhashnker Dwivedi. (2) The accused in that case was charged
for having committed offences under Sec. 161 IPC and Sec. 5 (2) of the 1947
Act.
The facts alleged were that the accused
respondent before this Court was an examiner appointed by the University for
the first year B.Sc. examination. He was alleged to have accepted gratification
of Rs. 500 other than legal remuneration for showing favour to a candidate by
giving him more marks than he deserved in the Physics practical examination.
The learned special Judge convicted him. In the appeal, the High Court after
taking note of cl. 9 and cl. 12 of Sec. 21 prior to their amendment by Act 40
of 1964 held that for cl. 9 to apply the person should be an officer 'in the
service or pay of the Government or remunerated by fees or commission for the
performance of any public duty 'and that such pay or remuneration or commission
must come from the Government'. It was further held that the context of the
whole of the Ninth Clause, as 536 remuneration or in respect of the performance
of public duty.' It was further held that the use of the word 'officer' read in
the context of the words immediately preceding the last part would indicate
that the remuneration contemplated was remuneration by Government. The High
Court further held that the amendment made in 1964 and in particular the
addition of the words 'by the Government' in sub-cl.(a) of clause Twelfth
showed the legislative interpretation of the material portion of clause Ninth
as it stood before the amendment under consideration, After extraction these
reasons which appealed to the High Court, this Court observed than the
reasoning of the High Court does not suffer for many infirmity. It would
transpire that payment by the Government was implied without the use of the
expression, by the Government in cl. 9. The words 'by the Government' are added
in cl. (12)(a) amended. This apparently does not make any difference. It would
therefore necessarily follow that the amendment of cls (9) and (12) did not bring
about any change in the coverage and construction of the two clauses prior to
and since their amendment. If that be so, it would follow as necessary
corollary that if M.L.A. was not a public servant within the meaning of the
expression prior to Act 40 of 1964, since the Act, the law, legal effect and on
average of expression public servant remains unaltered and hence, M.L.A. is not
a 'public servant' comprehended in cl. (12)(a). Thus looking to the history and
evolution of Sec. 21 as traced, it is clear that till 1964 M.L.A. could not
have been conceivably comprehended in expression 'public servant' and the law
did not undergo any change since the amendment. On the contrary, the
recommendation of the Santhanam Committee which recommended inclusion of Ministers
and Parliamentary Secretaries but not of M.L.A. separately recommended a code
of conduct for M.L.A for saving them from the specter of corruption would
clearly and unmistakably show that till 1964 M.L.A. was not comprehended in
expression 'public servant' in Sec. 21 IPC and the amendment by Amending Act 40
of 1964 did not bring about the slightest change in this behalf concerning the
position of M.L.A. There for, apart from anything else, on historical evolution
of Sec. 21 adopted as an external aid to construction, one can confidently say
that M.L.A. was not and is not a 'public servant' within the meaning of the
expression in any of the clauses of Sec. 21 IPC.
Assuming that it would not be legally sound
or correct according to well-accepted canon of construction of a statute to
construe Sec. 21 (12) (a) by mere historical evolution of the section and the
constitutionally valid approach would be to look at the language Sec. 21 (12)
(a) by mere historical evolution of the section and the constitutionally valid
approach would be to look at the language employed in the section and upon its
true construction, ascertain whether M.L.A. is a public servant within the
meaning of the expression in that sub-clause. The learned special Judge held
that M.L.A. is a public servant because he is either in the pay of the
Government or is remunerated by fees for the performance of any public duty by
the Government.
A person would be a public servant under cl.
(12) (a) if (i) he is in the service of the Government; or (ii) he is in the
pay of the Government; or (iii) he is remunerated by fees or commission for the
performance of any public duty by the Government.
On behalf of the complainant-appellant, it
was contended that in order to make a person a public servant on the ground
that he is in the pay of the Government, there must exist a master-servant
relationship or a command- obedience relationship, and if these elements are
absent even if a person is in the pay of the Government, he would not be a
public servant. On behalf of the respondent, it was countered asserting that
the concept of master servant relationship or command-obedience relationship is
comprehended in the first part of cl. (12) (a) which provides that every person
in the service of the Government would be a public servant. It was urged that
if even for being comprehended in the second part of the clause namely, a
person would be a public servant if he is in the pay of the Government, their
ought to be a master-servant or command-obedience relationship, the Legislature
would be guilty of tautology and the disjunctive 'or' would lose all
significance. The use of the expression 'or ' in the context in which it is
found in cl. (12)(a) does appear to be a disjunctive. Read in this manner,
there are three independent categories comprehended in cl. (12) (a) and if a
person falls in any one of them, he would be a public servant. The three
categories are as held by the learned special Judge; (i) a person in the
service of the Government; (ii) a person in the pay of the Government; and
(iii) a person remunerated by fees or commission for the performance of any
public duty the Government. One can be in the service of the Government and may
be paid for the same.
One can be in the pay of the Government without
being in the service of the Government in the sense of manifesting
master-servant or command-obedience relationship. The use of the expression
'or' does appear to us to be a disjunctive as contended on behalf of the
respondent. Depending upon the context, 538 'or' may be read 'and' but the
court would not do it unless it is so obliged because 'or' does not generally
mean 'and' and 'and' does not generally mean 'or'. (See Green v. Premier
Glyrhonwy State Company Ltd.'(1) Babu Manmohan Das & Ors. v. Bishun Das,
(2) Ramta Prasad Aggarwal etc. Executive Engineer, Balladgarh & Anr.(3) and
several other which we consider it unnecessary to enumerate here.
Once it is accepted that 'a person in the pay
of the Government' connotes a specific and independent category of public
servant other than' a person in the service of the Government' does not inhere
a master-servant or command- obedience relationship between the Government as
the payer and the public servant as the payee, no part of the section is
rendered superfluous. Each part will receive its own construction. We therefore
consider it unnecessary to refer to those decisions, which were cited on behalf
of the respondent that the correct canon of construction to be adopted in such
a situation is that effect must be given, if possible, to the words used in the
statute, for the Legislature is deemed not to waste its words or to say
anything in vain.
What then is the true interpretation of the
expression 'in the pay of the Government'. In other words, is M.L.A. a person
'In the pay of the Government' so as to be public servant within the meaning of
the expression in Sec. 21 (12) (a). The expressions that call for construction
are (i) 'in the pay of' and (ii) 'Government'.
Art. 195 of the Constitution provides that'
Members of the Legislative Assembly and the Legislative Council of a State
shall be entitled to receive such salaries and allowances as may from time to
time be determined by the Legislature of the State by law and, until provision
in that respect is so made, salaries and allowances at such rates and upon such
conditions as were immediately before the commencement of the Constitution
applicable in the case of members of the Legislative Assembly of the
corresponding Province.' Armed with this power, the Maharashtra State
Legislative Assembly has enacted 'The Maharashtra Legislature Members' Salaries
and Allowances Act, 1956 (Bombay Act XLIX of 1956)'. Sec. 3 (1) provides that
'there shall be paid to each member during the whole of his term of office a salary
at the 539 rate of Rs. 450/-per month and sub-sec. (2) provides that 'there
shall be paid to each Member during the whole of his term of office per month a
sum of Rs. 400/- as a consolidated allowance for all matters not specifically
provided or by under the provision of the Act'. Sec. 4 provides for daily
allowances to be paid to Members. Sec. 5 provides for travelling allowance to
be paid to Members.
Sec. 5AC provides for a free travel by
railway and steamer by a Member subject to the conditions therein prescribed.
Members are also eligible for some allowances
as specified in various sections of the Act. The Maharashtra Legislature
Members Pensions Act, 1976 makes provision for payment of pension with effect
from April 1, 1981 at the rate of Rs. 300 per month to every person who has
served as a Member of the State Legislature for a term of 5 years subject to
other conditions prescribed in the section. There is a similar Act which makes
provisions for salaries and allowances of the Ministers of Maharashtra State.
Undoubtedly, M.L.A. receives a salary and
allowances in his capacity as M.L.A. Does it make him a person 'in the pay of
the Government'? Our attention has been drawn to the meaning of the word 'pay'
in different dictionaries and to the decision in M. Karunanidhi v. Union of
India(1) where after ascertaining the meaning of the word 'pay' given in
different dictionaries, the Court observed that the expression 'in the pay of'
does not signify master-servant relationship. The word 'pay' standing by itself
in open to various shades of meaning and when the word is used in a phrase 'in
the pay of'. it is more likely to have a different connotation than when
standing by itself. Before referring to the various shades of meaning set out
in the dictionaries, it would be advisable to caution ourselves against an
unrestricted reference to dictionaries. Standard dictionaries as a rule give in
respect of each word as meanings in which the word has either been used or it
is likely to be used in different contexts and connections.
While it may be permissible to refer to
dictionaries to find out the meaning in which a word is capable of being used
or understood in common parlance, the well-known canon of construction should
not even for a minute be overlooked that the meaning of the words and
expressions used in a statute ordinarily take their colour from the context in
which they appear. In Dy. Chief Controller of Imports & Exports, New Delhi
v. R.T. Kosalam & Ors.(2) this Court observed as under 540 "It is not always
a safe way to construe a statute or a contract by dividing it by a process of
etymological dissection and after separating words from their context to give
each word some particular definition given by lexicographers and then to
reconstruct the instruments upon the basis of those definitions. What
particular meaning should be attached to words and phrases in a given
instrument is usually to be gathered from the context, the nature of the
subject matter, the purpose of the intention of the author and the effect of
giving to them one or the other permissible meaning on the object to be
achieved. Words are after all used merely as a vehicle to convey the idea of
the speaker or the writer and the words have naturally, therefore, to be so
construed as to fit in with the idea which emerges on a consideration of the
entire context. Each word is but a symbol which may stand for one or a number
of objects.
The context, in which a word conveying
different shades of meanings is used, is of importance in determining the
precise sense which fits in with the context as intended to be conveyed by the
author".
In State Bank of India v. N. Sundara Money,
Krishna Iyer, J. speaking for the Court observed in his inimitable style that
'dictionaries are not dictators of statutory construction where the benignant
mood of a law, may furnish a different denotation'. With this caution, we may
briefly refer to the meaning of the expression 'pay' and 'in the pay of' given
by different dictionaries.
As far as the expression 'pay' is concerned,
a Constitution Bench of this Court in Karunanidhi's case referred to various
dictionaries and concluded that the word ordinarily means 'salary,
compensation, wages or any amount of money paid to the person who is described
as in the pay of the payer'. Serious exception was taken on behalf of the
appellant that no canon of construction would permit picking out shades of
meaning of word 'pay' and then read the phrase 'in the pay of' as synonymous
with the word 'pay'. On the other hand, it was asserted that the point is
concluded by the observation of the Constitution Bench that 'so far as the
second limb of the clause, 'in the pay of the Government' is concerned, that
appears to be of a much wider amplitude so as to include within its ambit even
a public servant who 541 pay of the other person and yet there may not be a
master servant relationship between them. The court did not ascertain the
meaning ascribed to phrase 'in the pay of' in different dictionaries. The
phrase 'in the pay of' would ordinarily import the element of employment or
paid employment or employed and paid by the employer. In Concise Oxford
Dictionary, 7th edition at page 753, the meaning assigned to the expression 'in
the pay of' is 'in the employment of'. In New Collins Concise English
Dictionary at page 831, 'in the pay of 'carries one meaning as 'one in paid
employment'. In Web sters New World Dictionary, the phrase 'in the pay of'
carries the meaning 'employed and paid by'. Relying on all these shades of
meaning, it was urged that the phrase 'in the pay of' does necessarily import
the element of master-servant relationship and its absence cannot be
countenanced. It was submitted even if A is paid by B a sum styled as pay
unless B is servant of A, it cannot be said that B is in the pay of A. We see
force in this submission. However, it is not implicit in the expression 'in the
pay of' that there ought to exist a master-servant relationship between payer
and payer. One can be in the pay of another without being in employment or
service of the other. We are not inclined to accept the submission that 'in the
pay of' must in the context, imply master-servant relationship for the obvious
reason that the court has to construe the phrase 'in the pay of' in its setting
where it is preceded by the expression 'in the service of the Government' and
succeeded by the expression 'remunerated by fees or commission for the
performance of any public duty by the Government'. The setting and the context
are very relevant for ascertaining the true meaning of the expression. In order
to avoid the charge of tautology, the phrase 'in the pay of the Government' in
cl. (12) (a) may comprehend a situation that the person may be in the pay of
the Government without being in the employment of the Government or without
there being a master-servant relationship between the person receiving the pay
and the Government as payer.
It was however, contended that the question
whether a person 'in the pay of the Government' is ipso facto a public servant
is no more res integra and concluded by the decision of the Constitution Bench
in Karunanidhi's case? In that case before adverting to the dictionary meaning
of the expression 'pay', the Constitution Bench speaking through Fazal Ali, J.
observed as under at page 282:
"We are of the opinion that so far as
the second limb 'in the pay of the Governments' is concerned, that appears to
be of 542 "We are of the opinion that so far as the second limb 'in the
pay of the Government' is concerned, that appears to be of a much wider
amplitude so as to include within its ambit even public servant who may not be
a regular employee receiving salary from his master".
The Court further observed that "the
expression 'in the pay of' connote that a person is getting salary, compensation,
wages or any amount of money. This by itself however, does not lead to the
inference that a relationship of master and servant must necessarily exist in
all cases where a person is paid salary". We are also of the opinion that
the phrase 'in the pay of the Government' does not import of necessity a
master-servant relationship. It is perfectly possible to say that a person can
be in the pay of the Government if he is paid in consideration of discharging
an assignment entrusted to him by the Government without their necessarily
being a master-servant relationship between them. It is not unusual in common
parlance to speak of a person being in the pay of another if he is paid for
acting at the behest or according to the desire of the other without the other being
his master and he the servant, that is to say without the control over the
manner of doing the work which a master-servant relationship implies. It is
such a category in addition to the one 'in the service of the Government' that
is sought to be comprehended in cl.
(12)(a). In respect of the extracted
observation of the Constitution Bench, there is no attempt to distinguish the
decision in Karunanidhi's case and therefore, it is not necessity to consider
the decisions cited in support of the submission that a judgment of the Supreme
Court especially of the Constitution Bench cannot be distinguished lightly and
is binding on us and unless questions of fundamental importance to national
life are involved, need not be by us.
We must however point out that the ratio of
the decision in Karunanidhi's case is not what is extracted hereinbefore but
the ratio is to be found at page 290 where the Constitution Bench held the
Chief Minister to be a public servant as comprehended in cl. (12)(s) of Sec. 21
on the finding:
"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".
543 It would appear at glance that no
argument was advanced and none has been examined by the Constitution Bench
bearing on the interpretation of the expression 'Government' in cl.
(12)(a). It was assumed that salary and
allowances paid to the Chief Minister are by Government. What does expression
'Government' in the clause connote was not even examined.
And it is on the aforementioned finding that
the Chief Minister was held to be a public servant but that does not conclude
the matter.
This is not the end of the matter. The
question may be posed thus: 'Even if M.L.A. receives salary and allowances
under the relevant statute, is he in the pay of the Government'? In other
words, what does the expression 'Government' connote? There is a short and a
long answer to the problem. Sec. 17 IPC provides that 'the word Government'
denotes the Central Government or the Government of a State'. Sec. 7 IPC
provides that 'ever expression which is explained in any part of the Code, is
used in every part of the Code in conformity with the explanation'. Let it be
noted that unlike the modern statute Sec. 7 does not provide 'unless the context
otherwise indicate' a phrase that prefaces the dictionary clauses of a modern
statute. Therefore, the expression 'Government' in Sec. 21 (12)(a) must either
mean the Central Government or the Government of a State.
Substituting the explanation, the relevant
portion of Sec. 21 (12) (a) would read thus: 'Every person in the pay of the
Central Government or the Government of a State or remunerated by fees or
commission for the performance of any public duty by the Central Government or
the Government of a State'. At any rate, the Central Government is out of
consideration. Therefore, the question boils down to this:
whether M.L.A. is in the pay of the
Government of a State or is remunerated by fees for the performance of any
public duty by the Government of a State ? In the debate between the
Presidential form and Parliamentary form of democracy, during the early days of
the Constituent Assembly, the balance tilted in favour of Parliamentary form of
Government. Mr. K. M. Munshi, one of the members of the Drafting Committee
spoke in this connection as under:
"We must not forget a very important
fact that, during the last hundred years, Indian public life has largely drawn
upon the traditions of British Constitutional Law. Most of us have 544 looked
up to the British model as the best. For the last thirty or forty years, some
hind of responsibility has been introduced in the governance of the country.
Our constitutional traditions have become
parliamentary and we have now all our Provinces functioning more or less on the
British model." In Rai Sahib Ram Jawaya Kapur & Ors. v. The State of
Punjab a Constitution Bench of this Court observed as under:
"Our Constitution, though federal in its
structure, is modelled on the British Parliamentary system where the executive
is deemed to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining the
confidence of the legislative branch of the State".
It was further observed that "in the
Indian Constitution executive as in England and the Council of Ministers we
have the same system of parliamentary consisting, as it does, of the members of
the legislature is, like, the British Cabinet 'a hyphen which joins, a buckle
which fastens the legislative part of the State to the executive part". In
Shamsher Singh & Anr. v. State of Punjab, a seven Judges Bench unanimously
overruled the decision in Sardari Lal v. Union of India and Ors. and held that
'our Constitution embodies generally the Parliamentary or Cabinet system of
Government of the British Model both for the Union and the States'. This view
has not been departed from. Now in parliamentary form of Government modelled on
British model, the executive, legislature and judicial powers are in the main
entrusted to separate instruments of the State. It is not for a moment
suggested that there is strict or water-fight division of powers, but the
functions are certainly divided. In Halsbury's Laws of England, Fourth Edition,
Vol. 8 para 813, separation of executive, legislative and judicial powers in
the Westminster Model have been adverted to. It reads as under:
"It is clear that the powers of
government are divided. The executive, legislative and judicial powers are in
the main 545 entrusted to separate instruments of the State; and local
government is further administered separately.
Thus the original concentration of power in
the Sovereign no longer exists; in the eighteenth century this division of the
powers of government seemed to be such an essential characteristic of the
English Constitution that it was made the basis for the doctrine of separation
of powers. This doctrine, which is to the effect that in a nation which has
political liberty as the direct object of its constitution on one person or
body of persons ought to be allowed to control the legislative, executive and
judicial powers, or any two of them, has never in its strict form corresponded
with the facts of English government mainly because, although the functions and
powers of government are largely separated, the membership of the separate
instruments of state overlap. Only in one aspect of the constitution can it be
said that the doctrine is strictly adhered to, namely, that by tradition,
convention and law the judiciary is insulated from political matters".
Parliament that is the Legislature exercises
control over the executive branch of the Government because it is a postulate
of Parliamentary form of Government that Executive is responsible to the
Legislature. In other words the Government of the country is controlled by a
ministry and Cabinet chosen by the electorate which while remaining responsible
to the electorate is responsible directly to the Legislature and such effective
means of exercising control is that any expense from. Consolidated Fund of the
State must have been earlier placed before the Legislature. In Halsbury's Laws
of England, Fourth Edition, Vol. 34 para 1005, it is stated that Parliament
exercises control over the actions of the executive government and the
administration of the laws it has enacted in various ways, one such being by
the doctrine of the constitution by which supply is granted annually by the
House of Commons and must receive legislative sanction each year and the supply
granted must be appropriated to the particular purposes for which it has been
granted. It may also be noticed that the staff of the House of Commons is
appointed by the House of Commons Commission comprising the Speaker, the Leader
of the House of the Commons, a member of the House nominated by the Leader of
the opposition and three other members appointed by the House. This Commission
is charged with a duty to determine the number and remuneration and other terms
and conditions of service. This Commission is also responsible for laying
before 546 the House an estimate of the expenses of the House departments and
of any other expenses incurred for the service of the House of Commons. (ibid
para 1155).
Let us turn to relevant provisions of the
Constitution.
Part VI of the Constitution provides that
'the executive power of the State shall be vested in the Governor and shall be
exercised by him either directly or through officers subordinate to him in
accordance with the Constitution.' Chapter III in Part VI provides for State
Legislature. Every State is to have a Legislature which shall consist of the
Governor and it can be unicameral or bicameral as the case may be Where the
State has a unicameral legislature, the assembly is called Legislative
Assembly. Art. 170 provides for members of the Legislative Assembly being
chosen by direct election from territorial constituencies in the State. Arts.
178 to 186 provide for officers of the State Legislatures such as the Speaker
and Deputy Speaker of the Legislative Assembly and Chairman and Deputy Chairman
of Legislative Council as the case may be, their powers, functions and their
either vacating the office or removal from the office. Art. 187 (1) provides
that 'the House or each House of the Legislature of a State shall have a
separate secretarial staff'. Marginal note of the article is 'Secretariat of
State Legislature'. Sub-art.(2) of Art. 187 provides that 'the Legislature of a
State may by law regulate the recruitment, and the conditions of service of
persons appointed, to the secretarial staff of the House or Houses of the
Legislature of the State'. Art. 266 obliges the State to set up its
Consolidated Fund. Art. 203 prescribes the procedure with respect to estimates.
The estimates as relate to expenditure charged upon the Consolidated Fund of a
State shall not be submitted to the vote of the Legislative Assembly but the
discussion in the Legislature is permissible thereon. However, so much of the
said. estimates as relate to other expenditure shall be submitted in the form
of demands for grants to the Legislative Assembly, and the Legislative Assembly
shall have power to assent, or to refuse to assent, to any demand, or to assent
to any demand subject to a reduction of the amount specified therein. In other
words, Legislative Assembly has complete power of purse. Art. 204 casts an
obligation to introduce a Bill to provide for appropriation out of the
Consolidated Fund of the State of all moneys required to meet-(a) the grants so
made by the Assembly; and (b) the expenditure charged on the Consolidated Fund
of the State but not exceeding in any case the amount shown in the statement
previously laid before the House or Houses. A conspectus of these provisions
clearly indicate that the Legislature enjoys the power of 547 purse. Even with
regard to expenses charged on the Consolidated Fund of the State to be set up
under Art. 266, an appropriation bill has to be moved and adopted, undoubtedly,
the same would be non-votable. And it is not disputed that salaries and
allowances payable to M.L.A. are not charged on the Consolidated Fund of the
State. This probably is an emulation of the situation in England where salary
and allowances of the members of the Parliament are not charged on the Consolidated
Fund. As a necessary corollary, it would be a votable item.
There thus is a broad division of functions
such as executive, legislative and judicial in our Constitution. The
Legislature lays down the broad policy and has the power of purse. The executive
executes the policy and spends from the Consolidated Fund of the State what
Legislature has sanctioned. The Legislative Assembly enacted the Act enabling
to pay to its members salary and allowances. And the members vote the grant and
pay themselves. In this background even if there is an officer to disburse this
payment or that a pay bill has to be drawn up are not such factors being
decisive of the matter. That is merely a mode of payment, but the M.L.As. by a
vote retained the fund earmarked for purposes of disbursal for pay and
allowances payable to them under the relevant statute. Therefore, even though
M.L.A. receives pay and allowances, he is not in the pay of the State
Government because Legislature of a State cannot be comprehended in the expression
'State Government'.
This becomes further clear from the provision
contained in Art. 12 of the Constitution which provides that 'for purposes of
Part III, unless the context otherwise requires, "the State" includes
the Government and Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India'. The expression
'Government and Legislature', two separate entities, are sought to be included
in the expression 'State' which would mean that otherwise they are distinct and
separate entities. This conclusion is further reinforced by the fact that the
executive sets up its own secretariat, while Art. 187 provides for a
secretarial staff of the Legislature under the control of the Speaker, whose
terms and conditions of the service will be determined by the Legislature and
not by the executive. When all these aspects are pieced together, the
expression 'Government' in Sec. 21 (12)(a) clearly denotes the executive and
not the Legislature. M.L.A. is certainly not in the pay of the executive.
Therefore, 548 the conclusion is inescapable that even though M.L.A.
receives pay and allowances, he cannot be
said to be in the pay of the Government i.e. the executive. This conclusion
would govern also the third part of cl..(12)(a) i.e. 'remunerated by fees for
performance of any public duty by the Government'. In other words, M.L.A. is
not remunerated by fees paid by the Government i.e. the executive.
It was also contended that M.L.A. is not
performing any public duty. It is not necessary to examine this aspect because
it would be rather difficult to accept an undly vide submission that M.L.A. is
not performing any public duty.
However, it is unquestionable that he is not
performing any public duty either directed by the Government or for the
Government. He no doubt performs public duties cast on him by the
Constitutional and his electorate. He thus discharges constitutional functions
for which he is remunerated by fees under the Constitution and not by the
Executive.
It was further contended that on the analogy
of the decision in His Majesty the King v. Boston & Ors.,(' M.L.A.
would be a public servant. In Boston's case,
the allegation was that Harrison and Mitchel more paid to defendant Boston in
his official capacity as a Member of the Legislative Assembly of New South
Wales and the latter corruptly accepted in that capacity as inducement to him
in violation of his official duty to use his position as such member; (a) to
secure the acquisition by the Government of the State of New South Wales of
certain estates and the payment for such estates out of the public funds of the
State; and (b) to put pressure upon the Minister for Lands and other officers
of the Crown to acquire and pay for such estates. The contention was that the
agreement between the defendants might have been to pay money to Boston to
induce him to use his position exclusively outside Parliament, and not by vote
or speech in the Assembly, and that the transaction in connection with which he
was to use his position to put pressure on the Minister might consistently with
the information, be one which would never come before Parliament and which, in
his opinion and in the opinion of those who paid him, was highly beneficial to
the State; that such an agreement would not amount to a criminal offence, and
that consequently the information is bad. Negative this contention, it was held
that it is settled law that an agreement or combination to do an act which
tends to produce a public mischief amounts to a criminal conspiracy. It was
further 549 held by the majority that the payment of money to, and the receipt
of money by, a member of Parliament to induce him to use his official position,
whether inside or outside Parliament, for the purpose of influencing or putting
pressure on a Minister or other officer of the Crown to enter into or carry out
a transaction involving payment of money out of the public funds, are acts
tending to the public mischief, and an agreement or combination to do such acts
amounts to a criminal offence. The question has been examined in the light of
the settled law that an agreement or combination to do an act which tends to
produce a public mischief amounts to a criminal conspiracy. Isaacs and Rich, JJ
posited the question: how far a member of the Legislative Assembly of New
South. Wales can, without incurring any real personal responsibility-that
is-other than political rejection, make his public position the subject of
profitable traffic by engaging in departmental intervention on behalf of
individuals in return for private pecuniary consideration to himself ? The
concurring judgment examined the general position of a member of Parliament and
then proceeded to examine the special provisions of the relevant clause. On
this point it was concluded that the fundamental obligation, which is the key
to this case, is the duty to serve and, in serving, to act with fidelity and
with a simplemindedness for the welfare of the community. It was further
observed that a member of Parliament is, therefore, in the highest sense, a
servant of the State; his duties are those appertaining to the position he
fills, a position of no transient or temporary existence, a position forming a
recognized place in the constitutional machinery of government. It was also
held that he holds an office. In the third concurring judgment of Higgins, J,
while conceding that the member of Parliament has to discharge a duty in which
the public is interested, but after-examining provisions of the public Service
Acts, it Was held that he is not public officer within the meaning of that Act
because he is not required to obey the commands of the King or of the
departmental heads. It was however concluded that as a member of Parliament, he
holds a fiduciary relation towards the public, and that is enough. The minority
judgment of Gavan Duffy and Starke, JJ. clearly proceeds on their holding that
a member of Legislative Assembly of New South Wales is not the holder of a
public office within the meaning of the common law and even if he could be
regarded as the holder of such an office, the acts charged as intended to be
done by the defendant Boston, however improper they may be, would not be
malversation in his office or acts done in his office or acts done in his
office unless they were done in the discharge of his legislative functions. As
we are concerned with a legislative enactment- Sec. 21(12)(a), this decision
based on the 550 concept of common law and some of the statutes as prevailing
in Australia would not be very helpful. It may be mentioned while comparing
M.L.A. and M.P. in India with M.P. in U.K. that the M.P. in U.K. is neither
covered by the Prevention of Corruption Act, 1906 nor the Prevention of Corruption
Act, 1916. It may also be mentioned that The Public Bodies Corrupt Practices
Act, 1889 does not cover M.P. in U.K. 'The acceptance by any member of either
House of Parliament of a bribe to influence him in his conduct as such member
or of any fees, compensation or reward in connection with the promotion of, or
opposition to any bill, resolution, matter or thing submitted or intended to be
submitted to the House or any committee thereof is a breach of privilege.'(')
Attempts to bring M. P. in U.K. either under the provisions of the Prevention
of Corruption Act or the public Bodies Corrupt Practices Act have not met with
success. Even such modicum of decency in public life as disclosing relevant,
pecuniary interest or benefit of whatever nature whether direct or indirect
that he may have had or may be expecting to have while participating in a
debate or proceeding in House by M.P. in U.K. was stoutly resisted in 1974. But
Paulson Affair stirred many and Royal Commission on Corruption in Public Life headed
by Lord Justice Salmon was set up. The Commission inter alia recommended in
1976 that M.Ps. should be brought within the scope of the corruption laws
regarding their actions inside as well outside Parliament. No follow up
legislative action appears to have been taken since then.
If M.L.A. is not in the pay of the Government
in the sense of Executive government or is not remunerated by fees for
performance of any public duty by the Executive Government, certainly he would
not be comprehended in the expression 'public servant' within the meaning of
the expression in cl. (12) (a). He is thus not a public servant within the
meaning of the expression in cl.(12) (a). This conclusion reinforces the
earlier conclusion reached by us after examining the historical evolution of
cl. (12) (a).
Mr. Singhvi, however, strenuously contended
that M.L.A.
would be comprehended in cl. (3) or cl. (7)
of Sec. 21 IPC to be a public servant He went so far as to suggest that, his
emphasis would have been more on cl. (3) comparatively and not on cl. (12) (a).
Therefore, it may now. be examined whether M.L.A. is comprehended either in cl.
(3) or cl. (7) of Sec. 21 IPC.
551 Re (e): Cl.(3) of Sec. 21, as it at
present stands, takes within its purview every Judge including any person
empowered by law to discharge whether by himself or as a member of any body of
persons, any adjudicatory functions.
Prior to its amendment by Act 40 of 1964 the
cl. (3) read simply 'Every judge'. Cl. (3) was amended to read, as it at
present stands, pursuant to the recommendations of the Santhanam Committee. In
Para 7.6 of the Report, it was recommended that 'a' further category should be
added to include all persons discharging adjudicatory functions under any Union
of State Law for the time being in force'. With this end in view, the Committee
recommended that cl. (3) should read: 'Every Judge including any person
entrusted with adjudicatory functions in the course of enforcement of any law
for the time being in force'. At the Bill stage, the clause was recast so as to
give full effect to the recommendation of the Committee and this equally
becomes clear from the Statement of objects and Reasons accompanying Bill No.
67 of 1964 which when adopted became Act 40 of 1964. In para 2 (a) of the
Statement of objects and Reasons it is stated that 'the definition of public
servant in Sec. 21 of the Indian Penal Code is proposed to be amended so as to
bring within its purview certain additional categories of persons such as
persons performing adjudicatory functions under any law, liquidators,
receivers, commissioners etc.' If we recall the earlier discussion about the
history of evolution of cl, (12) (a) and the entire range of recommendation of
the Santhanem Committee, it can be confidently said the M.L.A. was never
intended to be brought within the conspectus of clauses of Sec. 21 so as to
clothe him with the status of a public servant.
Independent of this historical evolution and
focussing attention on the language of cl. (3) it is difficult to hold that
M.L.A. as a member of a body of persons such as the Legislative Assembly
performs any adjudicatory functions empowered by law to discharge that
function. In fact, Santhanam Committee contemplated covering such officers like
liquidators, receivers, commissioners etc. each of whom is empowered by
different statutes to discharge such adjudicatory functions as prescribed by
the concerned law.
It was however, contended that expression
'Judge' has been defined in Sec. 19 IPC to denote 'not only every person who is
officially designated as a Judge, but also every person who is empowered by law
to give, in any legal proceeding, civil or criminal, a definitive judgment, or
a judgment which, if not appealed against, would be definitive, or a judgment,
if confirmed by some other authority, would be definitive, 552 or who is one of
a body of persons which body of persons is empowered by law to give such a
judgment and in cl. (3) this definition cannot be substituted because it is an
inclusive definition which means it is extensive in character.
Accepting the position that inclusive
definition extends the specific meaning of the expression which it would not
otherwise bear, it is necessary to determine whether this extension of the
expression 'Judge' is so wide as to cover within its umbrella M.L.A. on the
ground that while voting upon a motion for breach of privilege or for contempt
of the House, he is discharging adjudicatory functions and that he is so
empowered by law to do so. When with the permission of the Speaker, a motion
for breach of privilege is moved in the Legislative Assembly or a motion for
taking action for contempt of the House is moved, undoubtedly, every member of
the House has a right to participate and after the motion is debated upon, the
majority vote is recorded as a decision of the House. Does that make M.L.A. a
person as a member of a body persons who discharges adjudicatory functions? The
definition of expression 'Judge' comprehends adjudication in any legal
proceeding, civil or criminal and in which the person as a Judge is empowered
to give a definitive judgment. It is difficult to accept the submission that
the proceedings before the House either upon a motion for breach of privilege
or for contempt is a civil or criminal proceeding, as these terms ordinarily
connote. A motion for breach of privilege or for contempt of the House is
brought before the House when the mover feels that the powers, privileges and
immunities of the House have been violated.
The House has the power to punish for
contempt' and the penal jurisdiction of the House is not confined to their own
Members nor to offences committed in their presence, but extends to all
contempts of the Houses, whether committed by Members or by persons who are not
Members, irrespective of whether the offence is committed within the House or
beyond its walls'. (See Earskine May Parliamentary Practice 20 ed.
p. 122). This power of commitment is truly
described as a key-stone of Parliamentary Practice. It was pointed out that
'the origin of the power which is judicial in its nature is to be found
naturally in the medieval conception of Parliament as primarily a court of
justice-the High Court of Parliament' (ibid page 124). It is however, difficult
to say that a State Legislature functioning under our Constitution can be
described as High Court of Legislative Assembly. In blindly tailoring our
Constitutional Law to the Parliamentary Practice in U.K., one is apt to
overlook the obvious fact that House of Lords always possessed the judicial
power as any Court of Westminster Hall. (ibid p. 124). In this connection in
Special 553 Ref. No. 1 of 1964(1) it was clearly stated that the result of the
provision contained in the latter part of Art. 194(3) was not intended to be
confer on the State Legislatures in India the status of a superior Court of
Record. It was further observed that the House and indeed all Legislative
Assemblies in India never discharged any judicial functions and their
historical and constitutional back ground does not support the claim that they
can be regarded as Court of Record in any sense Undoubtedly, the Legislative
Assembly in view of the provisions contained in Art. 194(3) has the power to
inflict punishment for breach of privilege and for contempt of the House And
when a motion is moved complaining breach of privilege or for taking action for
the contempt of the House, the members would participate in the debate analyse
evidence and absence thereof in support of the motion and against the motion
and ultimately decide as a body by a democratic process whether the motion is
affirmed or rejected. The question is whether this process can be styled as an
adjudicatory process discharged by M.L.A. as empowered by law. If the
expression 'law' were to include the Constitution, certainly this power is
enjoyed by M.L.A.
but expression 'law' ordinarily does not
include the Constitution. Art 13(1) of the Constitution provides that all laws
in force in the territory of India immediately before the commencement of the
Constitution in so far as they are consistent with the provision of Part III
shall to the extent of inconsistency be void. Sub-Art. (2) imposes a
restriction on the legislative power of the State to make any law which takes
away or abridges the rights conferred by Part III and any law made in
contravention of sub-Art (2) shall to the extents of the contravention, be void
'Expression 'law' as used here would be law other than Constitution. in other
words law enacted in exercise of the legislative power. The majority view in
I.C. Golaknath v. State of Punjab(1) that amendment of the Constitution is part
of the legislative process does not survive as valid any longer because it was
admitted that Constitution (Twenty Fourth) Amendment Act, 1971 in so far as it
transfers the power to amend the Constitution from the residuary entry or
Article 248 of the Constitution to Article 368 is valid.
After so saying the trend of discussion in
various judgments in H.H. Keshvnand Bharathi Sripadanaga galavaru v. State of
Kerala and another(2) shows that when the power amend the Constitution is
exercise by Parliament it exercises Constituent power and this is independent
of the ordinary 554 legislative process. And this approach is borne out by a
reference to the definition of expression Indian law in the General Clauses Act
which does not include the Constitution.
A passing reference may also be made to the
form of oath prescribed for a Judge of the Supreme Court and the Judge of the
High Court in the Third Schedule which separately refer to the Constitution and
the laws.
Participation in a debate on a motion of
breach of privilege or for taking action for contempt of the House and voting
thereon is a constitutional function discharged by the members and therefore,
it cannot be said that such adjudicatory function if it can be so styled,
constitutes adjudicatory function undertaken by M.L.A. as empowered by law.
Viewed from this angle it is not necessary to examine the contention that
adjudication and a resultant judgment presupposes a lis between persons other
than adjudicator, and M.L.A. has no lis before him as a body of persons when
passing upon the motion for contempt or breach of privilege.
Accordingly the submission that the accused
would be a public servant within the meaning of the expression in cl. (3) of
Sec. 21 IPC must be rejected.
The last limb of the submission was that at
any rate, the accused would be a public servant within the meaning of cl. (7)
of Sec. 21 IPC, which takes within its ambit 'every person who holds any office
by virtue of which he is empowered to place or keep any person in confinement'.
This limb of the submission was not placed for consideration of the learned
trial Judge. And it has merely to be stated to be rejected. We, however, did
not want to reject it on this narrow ground. Expanding this contention, it was
urged that M.L.A. is empowered to adjudge a person guilty of breach of
privilege or contempt of the House and when prison sentence is imposed to keep
him in confinement. Assuming for the purpose of this argument that M.L.A. holds
an office, is he a person empowered to place or keep any person in confinement.
Power to impose punishment is independent of the power to keep a person in
confinement. First is the power to impose a prison sentence. but second is the
power flowing from the execution of the sentence to place or keep any person in
confinement meaning thereby, there is an execution of warrant Persons whose
duty it is to deprive a person directed to be imprisoned to deprive him of his
liberty to remain free and to keep or place him in confinement in due execution
of the warrant would be comprehended in cl. (3). It is difficult to accept the
submission that M.L.As. As a body can keep or place any person in confinement.
Reference was, however, made to some of the passages 555 in Parliamentary
Practice by Earskine May, 20th Edn. as also to Practice and Procedure of
Parliament, Third Edition by Kaul and Shakdher, p. 208. The authors observed at
page 208 that 'each House of the Legislature of State, has the power to secure
the attendance of persons on matters of privilege and to punish for break of
privilege or contempt of the House and commit the offender to custody or
prison'. At page 212, it is observed that 'each House has the power to enforce
its orders including the power for its officers to break open the doors of a
house for that purpose, when necessary, and execute its warrants in connection
with contempt proceedings'. We fail to see how these observations assist us in
understanding the expression 'empowered to place or keep any person in
confinement.' Broadly stated, the expression comprehends Police and Prison
Authorities or those under an obligation by law or by virtue of office to take
into custody and keep in confinement any person. In M P. Dwivedi's case, this
Court observed that Seventh and Eighth clauses of Sec. 21 deal with persons who
perform mainly policing duties. To say that M.L.A. by virtue of his office is
performing policing or prison officers' duties would be apart from doing
violence to language lowering him in status. Additionally, cl. (7) does not
speak of any adjudicatory function. It appears to comprehend situations where
as preliminary to or an end product of an adjudicatory function in a criminal
case, which may lead to imposition of a prison sentence, and a person in
exercise of the duty to be discharged by him by virtue of his office places or
keeps any person in confinement. The decisions in Homi D. Mistry v. Shree
Nafisul Hussan & Ors.(1). Harendra Nath Barua v. Dev Kanta Barua & Ors
(2) and Edward Kelley v. William Carson, John Kent & Ors.(2) hardly shed
any light on this aspect. Therefore, the submission that M.L.A. would be
comprehended in cl. (7) of Sec. 21 so as to be a public servant must be
rejected.
Having meticulously examined the submission
from diverse angles as presented to us, it appears that M.L.A. is not a public
servant within the meaning of the expression in cl. (12)(a), cl. (3) and cl.(7)
of Sec. 21 IPC.
Re: (f) & (g): The learned Judge after
recording a finding that M.L.A. is a public servant within the comprehension of
cl. (12)(a) and further recording the finding that as on the date on which the
Court 556 was invited to take cognizance, the accused was thus a public servant
proceeded to examine whether sanction under Sec. 6 of the 1947 Act is a
pre-requisite to taking cognizance of offences enumerated in Sec. 6 alleged to
have been committed by him. He reached the conclusion that a sanction is
necessary before cognizance can be taken. As a corollary he proceeded to investigate
and identify, which is the sanctioning authority who would be able to give a
valid sanction as required by Sec; 6 for the prosecution of the accused in his
capacity as M.L.A.? We have expressed our conclusion that where offences as set
out in Sec. 6 are alleged to have been committed by a public servant, sanction
of only that authority would be necessary who would be entitled to remove him
from that office which is alleged to have been misused or abused for corrupt
motives. If the accused has ceased to hold that office by the date, the court
is called upon to take cognizance of the offences alleged to have been
committed by such public servant, no sanction under Sec. 6 would be necessary
despite the fact that he may be holding any other office on the relevant date
which may make him a public servant as understood in Sec 21, if there is no
allegation that office has been abused or misused for corrupt motives. The
allegations in the complaint are all to the effect that the accused misused or
abused his office as Chief Minister for corrupt motives. By the time the Court
was called upon to take cognizance of those offences, the accused had ceased to
hold the office of Chief Minister. The sanction to prosecute him was granted by
the Governor of Maharashtra but this aspect we consider irrelevant for
concluding that no sanction was necessary to prosecute him under Sec. 6 on the
date on which the court took cognizance of the offences alleged to have been
committed by the accused. Assuming that as M.L.A. that aspect becomes
immaterial. Further Sec. 6 postulates existence of a valid sanction for
prosecution of a public servant for offences punishable under Secs. 161, 164,
165 IPC and Sec. 5 of the 1947 Act, if they are alleged to have been committed
by a public servant. In view of our further finding that M.L.A. is not a public
servant within the meaning of the expression in Sec. 21 IPC no sanction is
necessary to prosecute him for the offences alleged to have been committed by
him.
In view of the conclusions reached by us, we
consider it unnecessary to ascertain which would be the authority competent to
sanction prosecution of M.L.A. as envisaged by Sec. 6 thought it must be
frankly confessed that considerable time was spent in the deliberations 557 in
search of competent sanctioning authority. The vital question has become one of
academic interest. We propose to adhere to the accumulated wisdom which has
ripened into a settled practice of this Court not to decide academic questions.
The question is left open.
Before we conclude let it be clarified that
more often in the course of this judgment, we have used the words `office of
M.L.A.' It was debated whether the M.L.A. holds seat or office? Our use of the
expression `office' should not be construed to mean that we have accepted that
the position of M.L.A. can be aptly described. as one holding public office or
for that matter.
To sum up, the learned special Judge was
clearly in error in holding that M.L.A. is a public servant within the meaning
of the expression in Sec. 12(a) and further erred in holding that a sanction of
the Legislative Assembly of Maharashtra or majority of the members was a
condition precedent to taking cognizance of offences committed by the accused.
For the reasons herein stated both the conclusions are wholly unsustainable and
must be quashed and set aside.
This appeal accordingly succeeds and is
allowed. The order and decision of the learned Special Judge Shri R.B. Sule
dated. July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and
Special Case No.3/83 is hereby set aside and the trial shall proceed further
from the stage where the accused was discharged.
The accused was the Chief Minister of a
premier State- the State of Maharashtra. By a prosecution launched as early as
on September 11, 1981, his character and integrity came under a cloud. Nearly
2/1/2 years have rolled by and the case has not moved an inch further. An
expeditious trial is primarily in the interest of the accused and a mandate of
Art. 21. Expeditious disposal of a criminal case is in the interest of both,
the prosecution and the accused. There, fore, Special Case No. 24 of 1982 and
Special Case. No 3/83 pending in the Court of Special Judge, Greater Bombay
Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a
request to the to the learned Chief Justice to assign these two cases to a
sitting Judge of the High Court.
On being so assigned, the learned Judge may
proceed to expeditiously dispose of the cases Preferably by holding the trial
from day to day.
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