Khan Vs. State of Orissa & Anr  INSC 111 (2 February 1995)
P.B. Sawant, P.B. Ray, G.N. (J)
1995 AIR 1123 1995 SCC (2) 437 JT 1995 (2) 1 1995 SCALE (1)419
common question of law, viz., whether sanction is required for launching a
criminal prosecution against the appellants, has been raised in these appeals.
Special Courts Act,1990 [hereinafter referred to as the "Special Courts
Act"] which came into force on 27th July, 1992 after receiving the assent
of the President, provides for constitution of special courts for the speedy
trial of certain classes of offences and for the confiscation of the property
involved in such offences.
2 [d] of that Act defines "offence" to mean an offence of criminal
misconduct within the meaning of clause (e) of sub-section  of Section 13 of
the Prevention of Corruption Act, 1988 [hereinafter referred to as the
5  of the Special Courts Act, as amended by the Amendment of 1993 reads as
. If the State Government is of the opinion that there is prima facie
evidence of the commission of an offence alleged to have been combined by a
person who held high public or political office in the State of Orissa, the
State Government shall make a declaration to that effect in every case in which
it is of the aforesaid opinion".
Rule 2 (1) [f] (i) of the Orissa Special Courts Rules [hereinafter referred to
as the "Rules"] reads as follows:
(1} [f]. "Person holding high political office" includes- (i) members
of the Council of Ministers and the Chief Minister".
[e] of sub-section  of Section 13 of the Act defines "offence of
criminal misconduct" as follows:
Criminal misconduct by a public servant.
A public servant is said to commit the offence of criminal misconduct - x x x x
x x (e) if he or any person on his behalf, is.
possession or has, at any time during the period of his office, been in
possession for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known sources of
Explanation. - For the purposes of this section,
"known sources of income" means income received from any lawful
source and such receipt has been intimated in accordance with the provisions of
any law, rules or orders for the time being applicable to a public servant.
is not disputed that all the appellants were Ministers in the Council of
Ministers of the respondent- State of Orissa during the period in which they were alleged to
have been found in possession of pecuniary resources or property
disproportionate to their known sources of income.
they ceased to be Ministers due to the change of Government and thereafter were
elected as the Members of the Legislative Assembly of the State
["MLA" for short].
continued to be such Members till the prosecutions were launched against them
for the said criminal misconduct under Section 13  (e) of the Act.
Habibulla Khan, the appellant in the appeal arising out of SLP No. 1563 of 1993
filed an application before the Special Court on 25th July, 1991 for recalling
the orders of the cognisance of the offence on the ground that at the time of
taking the cognisance, he was an MLA and as such a public servant within the
meaning of Section 2 [c] (viii) of the Act and, therefore, he could not be
tried for the offence under Section 13  (e) of the Act without the sanction
of the Governor of the State under Section 19 of the Act who according to him
was competent to remove an MLA under Article 192 of the Constitution. On 18th January, 1991, the Special Court dismissed the application holding that an MLA was not a
public servant and further the Governor was not competent to remove an MLA and
hence no sanction was required under the said provision. This order was
assailed by the appellant before the High Court under Section 482 of the Code
of Criminal Procedure on 22nd
January, 1993. The
learned Single Judge of the High Court referred the matter to Division Bench
which dismissed the matter by its impugned judgment of 5th May, 1993 holding
that an MLA is a public servant within the meaning of Section 2 [c] (viii) of
the Act; but the power of "removal" mentioned in Section 19 of the
Act partakes the character of punishment and the Governor has no power of
removal of an WA under Article 192 of the Constitution by way of punishment.
was a distinction between the concept of "removal" as used in Section
19 of the Act and that of "disqualification" as used in Article 192
of the Constitution. Since the Governor was not the authority to remove an
&MA, the sanction was not necessary under Section 19 of the Act.
appellant, Nagarjuna Pradhan in appeal arising out of SLP No.2261 of 1994
raised similar plea on 17th
August, 1993 but a
long time after the prosecution was launched against him and 31 prosecution
witnesses were examined.
Similarly, the appellant, Rama 3 Chandra Ulaka in appeals arising out of to SLP
Nos.2259-60 of 1994 raised the same plea belatedly in the two prosecutions
launched against him after 16 and 18 pros- ecution witnesses respectively were
examined in those cases.
The appellants are being prosecuted for the criminal misconduct which they are
alleged to have committed during the period they were holding high political
office within the meaning of Section 5  of the Special Courts Act read with
Rule 2 (1) [f] (1) of the Rules made under that Act.
Special Courts Act incorporates the definition of "criminal
misconduct" given in section 13  (e) of the Act. The procedure for
prosecution to be followed, however, is as laid down under the Special Courts
Act. All that the Special Courts Act requires for launching a criminal pros- ecution
against a person holding high political office is that the State Government
should make a declaration under Section 5  of that Act that there is prima
facie evidence of the commission of an offence by a person who held high public
or political office in the State. Hence the provi- sions of Section 19 of the
Act do not come into the picture in the present case. That being so, no
sanction of the Governor or any other authority is necessary for launching the
criminal prosecutions in question.
Assuming, however, that the procedure to be followed before launching criminal
prosecution is that under the Act, the admitted facts are that the appellants
are being prosecuted for the misconduct alleged to have been committed by them
during their tenure as the Members of the Council of Ministers and not in their
capacity as the MLAs. Hence the provisions of Section 19 of the Act are
inapplicable to the facts of the present case as held in R.S. Nayak v. A.R. Antulay
[(1984) 2 SCR 495].
The second question is whether the appellants could be prosecuted for the
offence which they are alleged to have committed during their tenure as
ministers after they ceased to be the ministers. This question has also been
answered by two decisions of this Court. In S.A.
Venkataraman v. The State [(1958) SCR 1040], it is held while construing
similar provision of Section 6 of the predecessor of the present Act which
provision was similar to the provisions of Section 19 of the present Act that
no sanction was necessary for the prosecution of the appellant in that case, as
he was not a public servant at the time of the taking of cognizance of the
offence. The Court there observed as follows:
construing the provisions of a statute it is essential for a Court, in the
first in- stance, to give effect to the natural meaning of the words used
therein, if those words are clear enough. It is only in the case of any
ambiguity that a Court is entitled to ascertain the intention of the
a general power to take cognizance of an offence is vested in a Court, any
prohibition to the exercise of that power, by any provision of law, must be
confined to the terms of the prohibition. The words in S.6 (1) of the Act are
clear enough and must be given effect to. The more important words 'in cl. (c)
of s. 6 (1) are "of the authority competent to remove him from his
office". A public servant who has ceased to be a public servant is not a
person removable from any office by competent authority. The conclusion is
inevitable that at the time a Court is asked to take cognizance not only must
the offence have been committed by a public servant but the person accused must
still be a public servant removable from his office by a competent authority
before the provisions of s.6 can apply." 13.Similarly, a Constitution
Bench in Veeraswami v. Union of India and others [(1991) 3 SCC 655], while
construing the provisions of the same Section 6 of the Prevention of Corruption
Act, 1947 held that no sanction under Section 6 of that Act was necessary for
prosecution of the appellant in that case since he had retired from service on
attaining the age of superannuation and was not a public servant on the date of
filing the charge sheet.
it was contended that while the Governor had given sanction to prosecute the
Chief Minister when he con- tinued to be an MLA in the case of R.S. Nayak v. A.R.Antulay
[supra], the question whether the sanction was necessary to prosecute an MLA as
a public servant did not arise. It, was, therefore, contended that although the
offence alleged to have been committed was during the appellants' tenure as
ministers, the appellants continued to be MLAs and, therefore, as public
servants on the day of the launching of prosecution and hence sanction of the
Governor under Article 192 of the Constitution was necessary. This question has
also been answered in R.S. Nayak v. A.R. Antulay [supra].
to this Court's decision in The State of (S.P.E. Hyderabad) v. Air Commodore Kailash
Chand [(1980) 2 SCR 697], this Court held as follows:
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 cogaizance
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."
therefore, that the MLA is a public servant within the meaning of Section 2 (c)
(viii) of the Act, in view of the aforesaid proposition of law laid down in
R.S. Nayak v. A.R. Antulay [supra], this contention also does not merit any
view of the above, the appeals are dismissed.