Parkash
Singh Badal and Anr Vs. State of Punjab & Ors [2006] Insc 906 (6 December 2006)
Dr.
Arijit Pasayat & S.H. Kapadia
(Arising
out of SLP (C) No.19640 of 2004) WITH
Criminal Appeal No.1279/06 @ SLP (Crl.)No.2697/2004, Civil Appeal No 5637/06 @
SLP (C)No.20000/2004, Criminal Appeal No.1281/06 @ SLP (Crl.)No.1620/2006,
Civil Appeal No.5639/06 @ SLP (C)No.10071/2006, Civil Appeal No.5638/06 @ SLP
(C)No. 20010/2004 and Criminal Appeal No.1280/06 @ SLP (Crl.)No. 3719/2006 Dr.
ARIJIT PASAYAT, J.
Leave
granted.
In
each of these appeals challenge is to the judgment of the Punjab and Haryana
High Court dismissing the petition filed by the appellant in each case
questioning the validity of proceedings initiated under the Prevention of
Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code, 1860
(in short the 'IPC'). In the latter category of cases the question raised is
either lack of sanction in terms of Section 197 of the Code of Criminal
Procedure, 1973 (in short the 'Code') or the legality thereof.
It is
the stand of the appellant in each case that the proceedings were initiated on
the basis of complaints which were lodged mala fide and as an act of political
vendetta. It is stated that allegations are vague, lack in details and even if
accepted at the face value, did not show the commission of any offence. It is
stated that though the High Court primarily relied on a Constitution Bench
decision of this Court in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183), the
said decision was rendered in the context of the Prevention of Corruption Act,
1947 (in short the 'Old Act'). It is submitted that the provisions contained in
Section 6 thereof are in pari materia to Section 19 of the Act so far as
relevant for the purpose of this case; the effect of Section 6(2) of the Old
Act (corresponding to Section 19(2) of the Act) was lost sight of. The decision
in the said case was to the effect that if an accused is a public servant who
has ceased to be a public servant and/or is a public servant of different category
then no sanction in terms of Section 19(1) of the Act corresponding to Section
6(1) of the Old Act is necessary.
So far
as the factual scenario of these cases is concerned appellant Sri Parkash Singh
Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and
Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal
allegedly committed offences punishable under Sections 8 and 9 of the Act. Shri
Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh
Sekhwan were Ministers during the concerned period and were at the time of
taking cognizance members of Legislative Assembly. Shri Sukhbir Singh Badal was
a member of the Parliament. As noted above, primary stand is that the effect of
Section 6(2) of the Old Act corresponding to Section 19 (2) of the Act was not
considered and in that view of the matter the judgment in Antulay's case
(supra) is to be considered per incuriam. Additionally, it is submitted that
the voluminous charge sheets filed are extremely vague and do not indicate
commission of any definite offence. Some allegations of general nature have
been made. The decision in P.V. Narasimha Rao v. State (1998 (4) SCC 626)
specifically dissented from the view regarding vertical hierarchy which appears
to be the foundation for the conclusion that the authority competent to remove
the accused from office alone could give sanction. It is submitted that the
offences alleged to have been committed under IPC had close nexus with the
workmen who are on official duty and therefore sanction under Section 197 of
the Code is mandatory. With reference to several judgments of this Court it is
submitted that even offences punishable under Sections 468, 471 and 120B have
been in certain cases held to be relatable to the official duty thereby
mandating sanction in terms of Section 197 of the Code.
It is
pointed out that the mala fide intention is clear as all these cases were
registered at Mohali Police Station which was declared to be the police station
for the purpose of investigation of the concerned cases and new Court was
established for the trial of the concerned cases and jurisdiction was conferred
on one officer without following the process of consultation with the High
Court. These are indicative of the fact that action was taken with mala fide
intention only to harass the accused persons as noted above.
Learned
counsel for the respondents on the other hand submitted that the decision in
R.S. Nayak's case (supra) correctly lays down the position. Several attempts
were made in the past to distinguish said case and to propound that the said
decision did not indicate the correct position in law. The allegations of mala
fide are clearly unfounded. No new court was established and in fact Special
Judge of Special Court who was appointed to have
consultation with the High Court was only designated to hear the cases. In fact
for the sake of convenience these cases having link with each other can be
disposed of early if they are taken up together by one Court.
In
essence, it is submitted that the decision in R.S. Nayak's case (supra) is not
per incuriam as contended. Under Section 19(1) of the Act previous sanction is
prescribed for a public servant if
(a) he
is a public servant at the time of taking cognizance of the offence and
(b) the
accused continues to hold office alleged to have been mis-used at the time of
taking cognizance of the offence by the Court. This is the view expressed in R.
S. Nayak's case (supra).
Section
6 of the Old Act and Section 19 of the Act read as follows:
"6.Power
to try summarily.
(1)
Where a special Judge tries any offence specified in sub-section (1) of section
3, alleged to have been committed by a public servant in relation to the contravention
of any special order referred to in sub-section (1) of section l2 A of the
Essential Commodities Act, 1955 (10 of 1955) or of an order referred to in
clause (a) of sub-section (2) of that section, then, notwithstanding anything
contained in sub- section (1) of section 5 of this Act or section 260 of the
Code of Criminal Procedure, 1973 (2 of 1974), the special Judge shall try the
offence in a summary way, and the provisions of sections 262 to 265 (both
inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided
that, in the case of any conviction in a summary trial under this section, it
shall be lawful for the special Judge to pass a sentence of imprisonment for a
term not exceeding one year:
Provided
further that when at the commencement of, or in the course of, a summary trial
under this section, it appears to the special Judge that the nature of the case
is such that a sentence of imprisonment for a term exceeding one year may have
to be passed or that it is, for any other reason, undesirable to try the case
summarily, the special Judge shall, after hearing the parties, record an order
to that effect and thereafter recall any witnesses who may have been examined
and proceed to hear or re-hear the ease in accordance with the procedure
prescribed by the said Code for the trial of warrant cases by Magistrates.
(2)
Notwithstanding anything to the contrary contained in this Act or in the Code
of Criminal Procedure, 1973 (2 of 1974), there shall he no appeal by a
convicted person in any case tried summarily under this section in which the
special Judge passes a sentence of imprisonment not exceeding one month, and of
fine not exceeding two thousand rupees whether or not any order under section
452 of the said Code is made in addition to such sentence, but an appeal shall
lie where any sentence in excess of the aforesaid limits is passed by a special
Judge.
19.
Previous sanction necessary for prosecution.
(1) No
court shall take cognizance of an offence punishable under sections 7, 10, 11,
13 and 15 alleged to have been committed by a public servant, except with the
previous sanction,
(a) in
the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with
the sanction of the Central Government, of that 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, of that Government;
(c) in
the case of any other person, of the authority competent to remove him from his
office.
(2)
Where for any reason whatsoever any doubt arises as to whether the previous
sanction as required under sub-section (1) should be given by the Central Government
or the 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.
(3)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974),
(a) no
finding, sentence or order passed by a special Judge shall be reversed or
altered by a Court in appeal, confirmation or revision on the ground of the absence
of, or any error, omission or irregularity in, the sanction required under
sub-section (1), unless in the opinion of that court, a failure of justice has
in fact been occasioned thereby;
(b) no
court shall stay the proceedings under this Act on the ground of any error,
omission or irregularity in the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has resulted in a failure
of justice;
(c) no
court shall stay the proceedings under this Act on any other ground and no
court shall exercise the powers of revision in relation to any interlocutory
order passed in any inquiry, trial, appeal or other proceedings.
(4) In
determining under sub-section (3) whether the absence of, or any error,
omission or irregularity in, such sanction has occasioned or resulted in a
failure of justice the court shall have regard to the fact whether the
objection could and should have been raised at any earlier stage in the
proceedings.
Explanation.For the purposes of this section,
(a) error
includes competency of the authority to grant sanction;
(b) a
sanction required for prosecution includes reference to any requirement that
the prosecution shall be at the instance of a specified authority or with the
sanction of a specified person or any requirement of a similar nature.
IPC
provided for offences by or relating to public servants under Chapter IX
including Sections 161 to 165A. The Old Act was enacted on 12.3.1947, with the
object of making provisions for the prevention of bribery and corruption more
effective. In 1952 a Committee headed by Dr. Bakshi Tek Chand was constituted.
The said Committee examined the true intent and purpose of Section 6 of the Old
Act. It was inter alia noted by the Committee as follows:
"Section
6 of the Act prescribes that no prosecution under Section 5(2) is to be
instituted without the previous sanction of the authority competent to remove
the accused officer from his office. The exact implications of this provisions
have on occasions given rise to a certain amount of difficulty. There have been
cases where an offence has been disclosed after the officer concerned has
ceased to hold office, e.g., by retirement. In such cases it is not entirely
clear whether any sanction is at all necessary. Another aspect of the same
problem is presented by the type of case which, we are told, is fairly
common-where an officer is transferred from one jurisdiction to another or an
officer who is lent to another Department, commits an offence while serving in
his temporary office and then returns to his parent Department before the
offence is brought to light. In a case of this nature doubts have arisen as to
the identity of the authority from whom sanction for prosecution is to be
sought.
In our
opinion there should be an unambiguous provision in the law under which the
appropriate authority for according sanction is to be determined on the basis
of competence to remove the accused public servant from office at the time when
the offence is alleged to have been committed." The Law Commission of
India in its 41st Report recommended amendment to Section 197 of the Code
suggesting to grant protection of previous sanction to a public servant who is
or was a public servant at the time of cognizance. Following the report of the
Law Commission of India, Section 197 of the Code was amended in 1969. The Act
was enacted on 9.9.1988 and the Statement of Objects and Reasons indicated
widening of the scope of the definition of "public servant" and the
incorporation of offences already covered under Sections 161 to 165A of the IPC
in the Act. New Section 19 as was enacted virtually the same as section 6 of
the Old Act. Earlier to R.S. Nayak's case (supra) this Court had occasion to
deal with the issues in S. A. Venkataraman v. State (AIR1958 SC 107). In para
14 it was stated as follows:
"14..There
is nothing in the words used in Section 6(1) to even remotely suggest that
previous sanction was necessary before a court could take cognizance of the
offences mentioned therein in the case of a person who had ceased to be a
public servant at the time the Court was asked to take cognizance, although he
had been such a person at the time the offence was committed..A public servant
who has ceased to be a public servant is not a person removable from any office
by a competent authority.." Following the decision rendered in Venkataraman's
case (supra) and C.R. Bansi v. State of Maharashtra (1970(3) SCC 537) the High
Court accepted the view of learned trial Judge and declined relief as noted
above.
The
use of the expression "is" in Section 19 of the Act vis- `-vis the
expression "is" or "was" is indicative of the legislative
intent. Though certain changes were made in the Code no corresponding change
was made in the Act.
Mr.
P.P. Rao, learned senior counsel for the appellants in connected case contended
that this was a case of casus omissus. The discussions indicate that the
reports of Dr. Bakshi Tek Chand and of the Law Commission of India were to be
accepted so far as they relate to covering the ex public servants. This plea
shall be dealt with in the cases separately.
In
reply, learned counsel for the respondents submitted that much before R.S. Nayak's
case (supra) this Court in C.R. Bansi's case (supra) held as follows:
"9..But
if a person ceases to be a public servant the question of harassment does not
arise. The fact that an appeal is pending does not make him a public servant.
The appellant ceased to be a public servant when the order of dismissal was
passed. There is no force in the contention of the learned counsel and the
trial cannot be held to be bad for lack of sanction under Section 6 of the
Act." It is their stand that where the public servant has ceased to be a
public servant in one capacity by ceasing to hold office which is alleged to
have been misused, the fortuitous circumstance of the accused being in another
capacity holding an entirely different public office is irrelevant. It was
categorically held in R. S. Nayak's case (supra) in para 13 that "on
analysis of the policy of the whole section the authority competent to remove
the public servant from the office alleged to have mis-used is alone the
competent sanctioning authority." In that case, it was inter alia, held as
follows:
"13.
Section 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.
Section
6 provides for a sanction as a pre- condition for a valid prosecution for
offences punishable under Sections 161, 164, 165 IPC and Section 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 5 of
this Act, alleged to have been committed 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 any 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. Xx xx xx xx
19.
Section 6 bars the court 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. Section 8 of 1952 Act prescribes procedure and powers of Special
Judge empowered to try offences set out in Section 6 of I 947 Act. Construction
of Section 8 has been a subject to 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. Section 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
clauses (a),(b) and (c) of sub-section (1). The object underlying such
provision was to save the public servant from the harassment of frivolous or
unsubstantiated allegations. The policy underlying Section 6 and similar sections,
is that there should not be unnecessary harassment of public servant. (See C.R.
Bansi V. State of Maharashtra (1971 (3) SCR 236). Existence thus of a valid
sanction is a prerequisite 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 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 Sections 161, 164, 165 IPC and Section
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 Section 6 has been held to be a
trial without jurisdiction by the court. (See R.R. Chari v. State of U.P.(1963)
1 SCR 121) and S.N. Bose v. State of Bihar ( 1968 (3) SCR 563) In Mohd. Iqbal Ahmad v. State of A P.( 1979(2) SCR 1007) 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 take 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 a public servant, no sanction would he necessary for taking
cognizance of the offence against him. This approach is in accord with the
policy underlying Section 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, Section 6 is not attracted. This
aspect is no more res integra. In S.A. Venkataraman v. State (1958 SCR 1040)
this Court held as under:
In our
opinion, in giving effect to the ordinary meaning of the words used in Section
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 Section 6 can apply. In the
present appeals, admittedly, the appellants had ceased to be public servants at
the time the court took cognizance of the offences alleged to have been
committed by them as public servants. Accordingly, the provisions of Section 6
of the Act did not apply and the prosecution against them was not vitiated by
the lack of a previous sanction by a competent authority.
And
this view has been consistently followed in C.R. Bansi case and K.S. Dharmadatan
v. Central Government (1979 (3) SCR 832). 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 as required
by Section 6 is the date on which the court is called upon to take cognizance
of the offence of which he is accused. (underlined for emphasis) Xx xx xx
23.
Offences prescribed in Sections 161, 164 and 165 IPC and Section 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 severable. Each of the three clauses
of sub- section (1) of Section 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 Section 6 requires a sanction before taking
cognizance of offences committed by public servant. The offence would 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 legal remuneration for cluing or forbearing to do an official act (Section
161 IPC) or as a public servant abets offences punishable under Sections 161
and 163 (Section 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 (Section 165 TPC) or commits criminal misconduct as defined
in Section 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 as public
servant. The expression 'office' In the three sub-clauses of Section 6(1) would
clearly denote that office which the public servant misused or abused for
corrupt motives for which he is to he prosecuted and in respect of which a
sanction to prosecute him is necessary by the competent authority entitled to
remove him from that office which he has abused. This interrelation between the
office and its abuse if severed would render Section 6 devoid of any meaning.
And this interrelation clearly provides a clue to the understanding of the
provision in Section 6 providing for sanction by a competent authority who
would he 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 he 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 A.P.)(1979 (2) SCR 1007). 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 fudge 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 he in a position to know what was the power conferred on the
office which the public servant holds, how that power could he 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 he by the public servant
against whom sanction is sought which would indicate a hierarchy and which
would therefore, permit inference o 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.
24.
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 Section 6, the same would be defeated if it is held that the
sanction of the latter authority is not necessary. The submission does not
commend to use. We fail to see how the competent authority entitled to remove
the public servant from an office which is neither alleged to have been used or
abused would be able to decide whether the prosecution is frivolous or
tendentious. An illustration was posed to the learned Counsel that a Minister
who is indisputably a public servant greased his palms by abusing his office as
Minister, and then ceased to hold the office before the court was called upon
to take cognizance of the offence against him and therefore, sanction as
contemplated by Section 6 would not be necessary; but if after committing the
offence and before the date of taking of cognizance of the 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 Section 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 thereby defeat the process of law. Ode can
legitimately envisage a situation wherein a person may hold a dozen different
offices, each one clothing him with the status of a public servant under
Section 21 IPC and even if he has abused only one office for which either there
is a valid sanction to prosecute him or he has ceased to hold that office by
the time court was called upon to take cognizance, yet on this assumption,
sanction of 11 different competent authorities each of which was entitled to
remove him from 11 different public offices would be necessary before the court
can take cognizance of the offence committed by such public servant/while
abusing one office which he may have ceased to hold. Such an interpretation in
contrary to all canons of construction and leads to an absurd and product which
of necessity must be avoided. Legislation must at all costs be interpreted in
such a way that it would not operate as a rougue's charter. (See Davis &
Sons Ltd. v. Atkins [1977] Imperial Court Reports, 662) xx xx xx
26.
Therefore upon a true construction of Section 6, it is implicit therein that
sanction of that competent authority alone would be necessary which is
competent to remove the public servant from the office which he is alleged to
have misused or abused for corrupt motive and for which a prosecution is
intended to be launched against him".
Para 18 of the said judgment is also of
considerable importance. It reads as follows:
"18.
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 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 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." As is clear from a
bare reading of the paragraph, this Court adopted a construction which is based
on the avoidance of mischief rule. That being so, the plea that the effect of
Section 6(2) of the Old Act was not kept in view does not merit acceptance.
Though a mere reference to a provision in all cases may not in all cases imply
consciousness as to the effect of that provision the case at hand does not fall
to that category. In this case not only was there reference to that provision,
but also this Court adopted a construction which kept in view the object of the
statute and the need for interpretation in a particular way. Foundation for the
interpretation is found in para 24 of the judgment. With reference to Davis &
Sons Ltd. v. Atkins (1977 Imperial Court Report 662) it was held that
legislation must at all costs be interpreted in such a way that it would not
operate as a rogue's charter.
In Habibulla
Khan v. State of Orissa and Anr. (1995 (2) SCC 437) it was
held was as follows:
"12.
However, it was contended that while the Governor had given sanction to
prosecute the Chief Minister when he continued to be an MLA in the case of R.S.
Nayak v. A.R. Antulay, 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.
Referring
to this Court's decision in State (S.P.E., Hyderabad) v. Air Commodore Kailash Chand this Court held : (SCC pp. 208-09, paras
25-26):
"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 Section 6.
Therefore,
upon a true construction of Section 6, it is implicit therein that sanction of
that competent authority alone would be necessary which is competent to remove
the public servant from the office which he is alleged to have misused or
abused for corrupt motive and for which a prosecution is intended to be
launched against him." The principle of immunity protects all acts which
the public servant has to perform in the exercise of the functions of the
Government. The purpose for which they are performed protects these acts from
criminal prosecution. However, there is an exception. Where a criminal act is
performed under the colour of authority but which in reality is for the public
servant's own pleasure or benefit then such acts shall not be protected under
the doctrine of State immunity.
In
other words, where the act performed under the colour of office is for the
benefit of the officer or for his own pleasure Section 19(1) will come in.
Therefore, Section 19(1) is time and offence related.
This
Court in Shreekantiah Ramayya Munipalli v. The State of Bombay reported in
(1955 (1) SCR 1177 at pages1186-1187) held as follows:
"We
have therefore first to concentrate on the word "offence".
Now an
offence seldom consists of a single act. It is usually composed of several
elements and, as a rule, a whole series of acts must be proved before it can be
established. In the present case, the elements alleged against the second
accused are, first, that there was an "entrustment" and/or
"dominion"; second, that the entrustment and/or dominion was "in
his capacity as a public servant"; third, that there was a
"disposal"; and fourth, that the disposal was "dishonest".
Now it is evident that the entrustment and/or dominion here were in an official
capacity, and it is equally evident that there could in this case be no
disposal, lawful or otherwise, save by an act done or purporting to be done in
an official capacity.
Therefore,
the act complained of, namely the disposal, could not have been done in any
other way. If it was innocent, it was an official act; if dishonest, it was the
dishonest doing of an official act, but in either event the act was official
because the second accused could not dispose of the goods save by the doing of
an official act, namely officially permitting their disposal; and that he did.
He actually permitted their release and purported to do it in an official
capacity, and apart from the fact that he did not pretend to act privately,
there was no other way in which he could have done it. Therefore, whatever the
intention or motive behind the act may have been, the physical part of it
remained unaltered, so if it was official in the one case it was equally
official in the other, and the only difference would lie in the intention with
which it was done : in the one event, it would be done in the discharge of an
official duty and in the other, in the purported discharge of it.
The
act of abetment alleged against him stands on the same footing, for his part in
the abetment was to permit the disposal of the goods by the doing of an
official act and thus "wilfully suffer" another person to use them
dishonestly: section 405 of the Indian Penal Code. In both cases, the
"offence" in his case would be incomplete without proving the
official act." (underlined for emphasis) The main contention advanced by Shri
Venugopal Learned senior counsel appearing for the appellant is that a public
servant who continues to remain so (on transfer) has got to be protected as
long as he continues to hold his office.
According
to the learned counsel, even if the offending act is committed by a public
servant in his former capacity and even if such a public servant has not abused
his subsequent office still such a public servant needs protection of Section
19(1) of the Act.
According
to the learned counsel, the judgment of this Court in R.S. Nayak's case (supra)
holding that the subsequent position of the public servant to be unprotected
was erroneous. According to the learned counsel, the public servant needs
protection all throughout as long as he continues to be in the employment.
The
plea is clearly untenable as Section 19(1) of the Act is time and offence
related.
Section
19(1) of the Act has been quoted above.
The
underlying principle of Sections 7, 10, 11, 13 and 15 have been noted above.
Each of the above Sections indicate that the public servant taking
gratification (S.7), obtaining valuable thing without consideration (S.11),
committing acts of criminal misconduct (S.13) are acts performed under the colour
of authority but which in reality are for the public servant's own pleasure or
benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if
a public servant in his subsequent position is not accused of any such criminal
acts then there is no question of invoking the mischief rule.
Protection
to public servants under Section 19(1)(a) has to be confined to the time
related criminal acts performed under the colour or authority for public
servant's own pleasure or benefit as categorized under Sections 7, 10, 11, 13
and 15. This is the principle behind the test propounded by this court, namely,
the test of abuse of office.
Further,
in cases where offences under the Act are concerned the effect of Section 19
dealing with question of prejudice has also to be noted.
In Balakrishnan
Ravi Menon v. Union of India (SLP (Crl.) No.3960 of 2002 decided on 17.9.2002)
a similar plea was rejected. It was inter alia held as follows:
"Hence,
it is difficult to accept the contention raised by U.R. Lalit, the learned
senior counsel for the petitioner that the aforesaid finding given by this
Court in Antulay's case is obiter.
Further,
under Section 19 of the PC Act, sanction is to be given by the Government or
the authority which would have been competent to remove the public servant from
his office at the time when offence was alleged to have been committed. The
question of obtaining sanction would arise in a case where the offence has been
committed by a public servant who is holding the office and by misusing or
abusing the powers of the office, he has committed the offence. The word
'office' repeatedly used in Section 19 would mean the 'office' which the public
servant misuses or abuses by corrupt motive for which he is to be prosecuted.
xx xx xx
Clauses (a) and (b) of sub-section (1) specifically provide that in case of a
person who is employed and is not removable from his office by the Central
Government or the State Government, as the case may be, sanction to prosecute
is required to be obtained either from the Central Government or the State
Government. The emphasis is on the words "who is employed" in
connected with the affairs of the Union or the State Government. If he is not
employed then Section 19 nowhere provides for obtaining such sanction. Further,
under sub-section (2) the question of obtaining sanction is relatable to the
time of holding the office when the offence was alleged to have been committed.
In case where the person is not holding the said office as he might have
retired, superannuated, discharged or dismissed then the question of removing
would not arise." The effect of sub-sections (3) and (4) of Section 19 of
the Act are of considerable significance. In Sub-Section (3) the stress is on
"failure of justice" and that too "in the opinion of the
Court". In sub-section (4), the stress is on raising the plea at the
appropriate time. Significantly, the "failure of justice" is
relatable to error, omission or irregularity in the sanction.
Therefore,
mere error, omission or irregularity in sanction is considered fatal unless it
has resulted in failure of justice or has been occasioned thereby. Section
19(1) is a matter of procedure and does not go to root of jurisdiction as
observed in para 95 of the Narasimha Rao's case (supra). Sub-section (3)(c) of
Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act
(Section 19(2) of the Act) question relates to doubt about authority to grant
sanction and not whether sanction is necessary.
In Halsbury's
Laws of England, 4th Edn., Vol.26 it is stated:
"A
decision is given per incuriam when the court has acted in ignorance of a
previous decision of its own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must decide which case to follow;
or when it has acted in ignorance of a House of Lords decision, in which case
it must follow that decision; or when the decision is given in ignorance of the
terms of a statute or rule having statutory force." In Govt. of A.P. v. B.
Satyanarayana Rao (2000 (4) SCC 262) it has been held as follows:
""The
rule of per incuriam can be applied where a court omits to consider a binding
precedent of the same court or the superior court rendered on the same issue or
where a court omits to consider any statute while deciding that issue."
"Incuria" literally means "carelessness". In practice per incuriam
is taken to mean per ignoratium. English courts have developed this principle
in relaxation of the rule of stare decisis. The "quotable in law" as
held in Young v. Bristol Aeroplane Co. Ltd. (1944 (2) All ER 293) is avoided
and ignored if it is rendered "in ignoratium of a statute or other binding
authority". Same has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which embodies the doctrine of
precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. (1991 (4) SCC 139).
To perpetuate an error is no heroism. To rectify it is the compulsion of the
judicial conscience.
The
above position was highlighted in Babu Parasu Kaikadi (dead) by Lrs. v. Babu
(dead) thr. Lrs. (2004 (1) SCC 681 and Sunita Devi v. State of Bihar and Anr. (2005 (1) SCC 608) As
regards applicability of Section 197 of the Code, the position in law has been
elaborately dealt with in several cases.
In Bakhshish
Singh Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while
emphasizing on the balance between protection to the officers and the
protection to the citizens observed as follows:- "It is necessary to protect
the public servants in the discharge of their duties. In the facts and
circumstances of each case protection of public officers and public servants
functioning in discharge of official duties and protection of private citizens
have to be balanced by finding out as to what extent and how far is a public
servant working in discharge of his duties or purported discharge of his
duties, and whether the public servant has exceeded his limit. It is true that
Section 196 states that no cognizance can be taken and even after cognizance
having been taken if facts come to light that the acts complained of were done
in the discharge of the official duties then the trial may have to be stayed
unless sanction is obtained. But at the same time it has to be emphasised that
criminal trials should not be stayed in all cases at the preliminary stage
because that will cause great damage to the evidence." The protection
given under Section 197 is to protect responsible public servants against the
institution of possibly vexatious criminal proceedings for offences alleged to
have been committed by them while they are acting or purporting to act as
public servants. The policy of the legislature is to afford adequate protection
to public servants to ensure that they are not prosecuted for anything done by
them in the discharge of their official duties without reasonable cause, and if
sanction is granted, to confer on the Government, if they choose to exercise
it, complete control of the prosecution. This protection has certain limits and
is available only when the alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is not merely a cloak for
doing the objectionable act. If in doing his official duty, he acted in excess
of his duty, but there is a reasonable connection between the act and the
performance of the official duty, the excess will not be a sufficient ground to
deprive the public servant from the protection. The question is not as to the
nature of the offence such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant, but whether it
was committed by a public servant acting or purporting to act as such in the
discharge of his official capacity. Before Section 197 can be invoked, it must
be shown that the official concerned was accused of an offence alleged to have
been committed by him while acting or purporting to act in the discharge of his
official duties. It is not the duty which requires examination so much as the
act, because the act can be performed both in the discharge of the official
duty as well as in dereliction of it. The act must fall within the scope and
range of the official duties of the public servant concerned. It is the quality
of the act which is important and the protection of this section is available
if the act falls within the scope and range of his official duty.
There
cannot be any universal rule to determine whether there is a reasonable
connection between the act done and the official duty, nor is it possible to
lay down any such rule. This aspect makes it clear that the concept of Section
197 does not immediately get attracted on institution of the complaint case.
At
this juncture, we may refer to P. Arulswami v. State of Madras (AIR 1967 SC
776), wherein this Court held as under:
"...
It is not therefore every offence committed by a public servant that requires
sanction for prosecution under Section 197(1) of the Criminal Procedure Code;
nor even every act done by him while he is actually engaged in the performance
of his official duties; but if the act complained of is directly concerned with
his official duties so that, if questioned, it could be claimed to have been
done by virtue of the office, then sanction would be necessary. It is quality
of the act that is important and if it falls within the scope and range of his
official duties the protection contemplated by Section 197 of the Criminal
Procedure Code will be attracted. An offence may be entirely unconnected with
the official duty as such or it may be committed within the scope of the
official duty. Where it is unconnected with the official duty there can be no
protection. It is only when it is either within the scope of the official duty
or in excess of it that the protection is claimable." Section 197(1) and
(2) of the Code reads as under:
"197.
(1) When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction –
(a) in
the case of person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of
the Union, of the Central Government;
(b) in
the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a
State, of the State Government.
* * *
(2) No Court shall take cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the Union while acting or
purporting to act in the discharge of his official duty, except with the
previous sanction of the Central Government." The section falls in the
chapter dealing with conditions requisite for initiation of proceedings. That
is if the conditions mentioned are not made out or are absent then no
prosecution can be set in motion. For instance no prosecution can be initiated
in a Court of Sessions under Section 193, as it cannot take cognizance, as a
court of original jurisdiction, of any offence unless the case has been
committed to it by a Magistrate or the Code expressly provides for it. And the
jurisdiction of a Magistrate to take cognizance of any offence is provided by
Section 190 of the Code, either on receipt of a complaint, or upon a police
report or upon information received from any person other than police officer,
or upon his knowledge that such offence has been committed. So far public
servants are concerned the cognizance of any offence, by any court, is barred
by Section 197 of the Code unless sanction is obtained from the appropriate
authority, if the offence, alleged to have been committed, was in discharge of
the official duty. The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and circumstances
in which it shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to a public
servant is brought out by the expression, 'no court shall take cognizance of
such offence except with the previous sanction'.
Use of
the words, 'no' and 'shall' make it abundantly clear that the bar on the
exercise of power by the court to take cognizance of any offence is absolute
and complete. Very cognizance is barred. That is the complaint, cannot be taken
notice of. According to Black's Law Dictionary the word 'cognizance' means
'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine
causes'. In common parlance it means 'taking notice of'. A court, therefore, is
precluded from entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused of an
offence alleged to have committed during discharge of his official duty.
Such
being the nature of the provision the question is how should the expression,
'any offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty', be understood? What does it
mean? 'Official' according to dictionary, means pertaining to an office, and
official act or official duty means an act or duty done by an officer in his
official capacity. In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 177), it
was held : (SCC pp. 184-85, para 17) "
The
words 'any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty' employed in Section
197(1) of the Code, are capable of a narrow as well as a wide interpretation.
If these words are construed too narrowly, the section will be rendered
altogether sterile, for, 'it is no part of an official duty to commit an
offence, and never can be'. In the wider sense, these words will take under
their umbrella every act constituting an offence, committed in the course of
the same transaction in which the official duty is performed or purports to be
performed. The right approach to the import of these words lies between two
extremes. While on the one hand, it is not every offence committed by a public
servant while engaged in the performance of his official duty, which is
entitled to the protection of Section 197 (1), an act constituting an offence,
directly and reasonably connected with his official duty will require sanction
for prosecution under the said provision." Use of the expression,
'official duty' implies that the act or omission must have been done by the
public servant in the course of his service and that it should have been in
discharge of his duty. The Section does not extend its protective cover to
every act or omission done by a public servant in service but restricts its
scope of operation to only those acts or omissions which are done by a public
servant in discharge of official duty.
It has
been widened further by extending protection to even those acts or omissions
which are done in purported exercise of official duty. That is under the colour
of office.
Official
duty therefore implies that the act or omission must have been done by the
public servant in course of his service and such act or omission must have been
performed as part of duty which further must have been official in nature. The
Section has, thus, to be construed strictly, while determining its
applicability to any act or omission in course of service. Its operation has to
be limited to those duties which are discharged in course of duty. But once any
act or omission has been found to have been committed by a public servant in
discharge of his duty then it must be given liberal and wide construction so
far its official nature is concerned. For instance a public servant is not
entitled to indulge in criminal activities. To that extent the Section has to
be construed narrowly and in a restricted manner. But once it is established
that act or omission was done by the public servant while discharging his duty
then the scope of its being official should be construed so as to advance the
objective of the Section in favour of the public servant. Otherwise the entire
purpose of affording protection to a public servant without sanction shall
stand frustrated. For instance a police officer in discharge of duty may have
to use force which may be an offence for the prosecution of which the sanction
may be necessary. But if the same officer commits an act in course of service
but not in discharge of his duty and without any justification therefor then
the bar under Section 197 of the Code is not attracted. To what extent an act
or omission performed by a public servant in discharge of his duty can be
deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari
(AIR 1956 SC 44) thus:
"The
offence alleged to have been committed (by the accused) must have something to
do, or must be related in some manner with the discharge of official duty ...
there must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable (claim) but not a pretended or fanciful claim, that he
did it in the course of the performance of his duty." If on facts,
therefore, it is prima facie found that the act or omission for which the
accused was charged had reasonable connection with discharge of his duty then
it must be held to be official to which applicability of Section 197 of the
Code cannot be disputed.
The
above position was highlighted in State of H.P.
v. M.P. Gupta (2004 (2) SCC 349), State of orissa through Kumar Raghvendra
Singh & Ors. v. Ganesh Chandra Jew (JT 2004(4) SC 52), Shri S.K. Zutshi and
Anr. v. Shri Bimal Debnath and Anr. (JT 2004(6) SC 323), K. Kalimuthu v. State
by DSP (2005 (4) SCC 512) and Rakesh Kumar Mishra v. The State of Bihar and Anr. (2006 (1) SCC 557).
In Rakesh
Kumar Mishra's case (supra) it was inter alia observed as follows:
"14.
In S.A. Venkataraman v. The State (AIR 1958
SC 107) and in C. R. Bansi v. The State of Maharashtra (1970 (3) SCC 537) this
Court has held that:
"There
is nothing in the words used in Section 6(1) to even remotely suggest that
previous sanction was necessary before a court could take cognizance of the
offences mentioned therein in the case of a person who had ceased to be a
public servant at the time the court was asked to take cognizance, although he
had been such a person at the time the offence was committed." Xx xx xx
16.
When the newly-worded section appeared in the Code (Section 197) with the words
"when any person who is or was a public servant" (as against the
truncated expression in the corresponding provision of the old Code of Criminal
Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra
v. State of Orissa (1998 (6) SCC 411) that the legal position must be treated
as changed even in regard to offences under the Old Act and New Act also. The
said contention was, however, repelled by this Court wherein a two-Judge Bench
has held thus:
"A
public servant who committed an offence mentioned in the Act, while he was a
public servant, can be prosecuted with the sanction contemplated in Section 197
of the Act if he continues to be a public servant when the court takes
cognizance of the offence. But if he ceases to be a public servant by that
time, the court can take cognizance of the offence without any such
sanction."
17.
The correct legal position, therefore, is that an accused facing prosecution
for offences under the Old Act or New Act cannot claim any immunity on the
ground of want of sanction, if he ceased to be a public servant on the date
when the court took cognizance of the said offences. But the position is
different in cases where Section 197 of the Code has application.
18.
Section 197(1) provides that when any person who is or was a public servant not
removable from his office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction
(a) in
the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of
the Union, of the Central Government and
(b) in
the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a
State, or the State Government.
19. We
may mention that the Law Commission in its 41st Report in paragraph 15.123
while dealing with Section 197, as it then stood, observed:
"it
appears to us that protection under the Section is needed as much after
retirement of the public servant as before retirement. The protection afforded
by the Section would be rendered illusory if it were open to a private person harbouring
a grievance to wait until the public servant ceased to hold his official
position, and then to lodge a complaint. The ultimate justification for the
protection conferred by Section 197 is the public interest in seeing that
official acts do not lead to needless or vexatious prosecution. It should be
left to the Government to determine from that point of view the question of the
expediency of prosecuting any public servant".
It was
in pursuance of this observation that the expression 'was' come to be employed
after the expression 'is' to make the sanction applicable even in cases where a
retired public servant is sought to be prosecuted." In P.K. Pradhan v. State
of Sikkim (2001 (6) SCC 704) it has, inter alia, held as follows:
"The
legislative mandate engrafted in sub-section (1) of Section 197 debarring a
court from taking cognizance of concerned in a case where the acts complained
of are alleged to have been committed by a public servant in discharge of his
official duty or purporting to be in the discharge of his official duty and
such public servant is not removable from office save by or with the sanction
of the Government, touches the jurisdiction of the court itself. It is
prohibition imposed by the Statute from taking cognizance. Different tests have
been laid down in decided cases to ascertain the scope and meaning of the
relevant words occurring in Section 197 of the Code: "any offence alleged
to have been committed by him while acting or purporting to act in the
discharge of his official duty." The offence alleged to have been
committed must have something to do, or must be related in some manner, with
the discharge of official duty. No question of sanction can arise under Section
197, unless the act complained of is an offence; the only point for
determination is whether it was committed in the discharge of official duty.
There must be a reasonable connection between the act and the official duty. It
does not matter even if the act exceeds what is strictly necessary for the
discharge of the duty, as this question will arise only at a later stage when
the trial proceeds on the merits. What a court has to find out is whether the
act and the official duty are so interrelated that one can postulate reasonably
that it was done by the accused in the performance of official duty, though,
possibly I excess of the needs and requirements of the situation." The
question relating to the need of sanction under Section 197 of the Code is not
necessarily to be considered as soon as the complaint is lodged and on the
allegations contained therein. This question may arise at any stage of the
proceeding. The question whether sanction is necessary or not may have to be determined
from stage to stage.
So far
as the question about the non application of mind in the sanction or absence of
sanction is concerned, this has been answered in the first question i.e. where
the public servant has ceased to be a public servant since he has ceased to
hold the office where the alleged offence is supposed to have been taken place,
the other questions really become academic.
A plea
has been taken that charge sheet is a bundle of confusions and no definite
material is placed on record to substantiate the allegation of commission of
any offence. This assertion has been refuted by learned counsel for the
respondent-State with regard to various definite materials indicating
commission of offence. Particular reference has been made to the following:
Pages
396-397, Volume 3 discloses how Rs.9 crores were recycled by Badal family
through the accounts of K.S. Siddhu into the project ORBIT Resort.
Pages
398-399, 404-407, 416-420, 448 establishes facts showing recycling of several crores
of rupees with the aid of Narottam Singh Dhillon, an NRI and close to Badal
family.
Illegally
earned money used to be deposited in the account of Narottam Singh Dhillon who
used to then get FDRs issued and thereafter used to take loans against the FDRs.
His bank account shows operation during 1997-2002. This loan money has been
given to Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal as loans which
have never been returned. This recyling involved making of fake entries in the
bank. There is evidence showing taking of gratification in transfers, postings
and promotions.
Pages
430-434 show purchases of property and shares in the name of Satnam Singh and Namta
Singh who were close to Badal family and the transfer of their interest to SB
in the year 2001.
Pages
489-494: Evidence collected shows amassing of benami property in the name of Shri
Harbans Lal and his family members who are close to Badal family.
Pages
499-502: reveals routing of black money into the transport companies being run
by the Badal family.
Pages
553-566 present a detailed analysis of the assets of Badal family generated
during the check period. Total disproportionate asset is to the tune of
Rs.78.39 crores. But disproportion could not be explained. Present market worth
is over Rs.500 crores.
At
pages 571-580 there is evidence to show flow of money from abroad.
At
page 582, it is specifically concluded that Parkash Singh Badal colluded with
his wife and son and other persons and committed corruption at large scale and
huge wealth and money was amazed which is more than their disclosed income.
Page
611 onwards relates to only of the income and wealth tax returns of Badal
family during the check period.
Thus
all relevant facts disclosing the offences committed by Parkash Singh Badal, S.
Kaur and Sukhbir Singh Badal in collusion with each other and with other
persons is clearly set out in the charge sheet and the same was submitted to
the Speaker along with relevant materials. The charge sheet is neither jumbled
nor unclear and sanctioning authority applies his mind.
As
regards the plea relating to non-definite offence, a few provisions of the Code
need to be noted. Sections 173, 215 and 220 reads as follows:
173.
Report of police officer on completion of investigation.
(1)
Every investigation under this Chapter shall be completed without unnecessary
delay.
(2) (i)
As soon as it is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government, stating
(a) the
names of the parties;
(b) the
nature of the information;
(c) the
names of the persons who appear to be acquainted with the circumstances of the
case;
(d) whether
any offence appears to have been committed and, if so, by whom;
(e) whether
the accused has been arrested;
(f) whether
he has been released on his bond and, if so, whether with or without sureties;
(g) whether
he has been forwarded in custody under section 170.
(ii)
The officer shall also communicate, in such manner as may be prescribed by the
State Government, the action taken by him, to the person, if any whom the
information relating to the commission of the offence was first given.
(3)
Where a superior officer of police has been appointed under section 158, the
report, shall, in any case in which the State Government by general or special
order so directs, be submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the police station to
make further investigation.
(4)
Whenever it appears from a report forwarded under this section that the accused
has been released on his bond, the Magistrate shall make such order for the
discharge of such bond or otherwise as he thinks fit.
(5)
When such report is in respect of a case to which section 170 applies, the
police officer shall forward to the Magistrate along with the report
(a) all
documents or relevant extracts thereof on which the prosecution proposes to
rely other than those already sent to the Magistrate during investigation;
(b) the
statements recorded under section 161 of all the persons whom the prosecution
proposes to examine as its witnesses.
(6) If
the police officer is of opinion that any part of any such statement is not
relevant to the subject-matter of the proceeding or that its disclosure to the
accused is not essential in the interests of justice and is inexpedient in the
public interest, he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to be granted to
the accused and stating his reasons for making such request.
(7)
Where the police officer investigating the case finds it convenient so to do,
he may furnish to the accused copies of all or any of the documents referred to
in sub-section (5).
(8)
Nothing in this section shall be deemed to preclude further investigation in
respect of an offence after a report under sub-section (2) has been forwarded
to the Magistrate and, where upon such investigation, the officer in charge of
the police station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports regarding, such evidence
in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as
far as may be, apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).
215.
Effect of errors.No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to state the offence or
those particulars, shall be regarded at any stage of the case as material,
unless the accused was in fact misled by such error or omission, and it has
occasioned a failure of justice.
220.
Trial for more than one offence.
(1)
If, in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same person, he may be
charged with, and tried at one trial for, every such offence.
(2)
When a person charged with one or more offences of criminal breach of trust or
dishonest misappropriation of properly as provided in sub-section (2) of
section 212 or in sub-section (1) of section 219, is accused of committing, for
the purpose of facilitating or concealing the commission of that offence or
those offences, one or more offences of falsification of accounts, he may be
charged with, and tried at one trial for, every such offence.
(3) If
the acts alleged constitute an offence falling within two or more separate definitions
of any law in force for the time being by which offences are defined or
punished, the person accused of them may be charged with, and tried at one
trial for, each of such offences.
(4) If
several acts, of which one or more than one would by itself or themselves
constitute an offence, constitute when combined a different offence, the person
accused of them may be charged with, and tried at one trial for the offence
constituted by such acts when combined, and for any offence constituted by any
one, or more, or such acts.
(5)
Nothing contained in this section shall affect section 71 of the Indian Penal
Code (45 of 1860).
Section
72 IPC is also relevant. Same reads as follows:
"72.
Punishment of person guilty of one of several offences, the judgment stating
that it is doubtful of which.--In all cases in which judgment is given that a
person is guilty of one of several offences specified in the judgment, but that
it is doubtful of which of these offences, he is guilty, the offender shall be
punished for the offence for which the lowest punishment is provided if the
same punishment is not provided for all".
The
report in terms of Section 173 of the Code is in the nature of information to
the Magistrate. Statutory requirement is complied with if the requisite
information is given. It purports to be an opinion and therefore elaborate
details are not necessary. In K. Veeraswami v. Union of India and Ors. (1991 (3) SCC 655) it was
held as follows:
"The
charge sheet is nothing but a final report of police officer under Section
173(2) of the Cr.P.C. The Section 173(2) provides that on completion of the
investigation the police officer investigating into a cognizable offence shall
submit a report. The report must be in the form prescribed by the State Government
and stating therein
(a) the
names of the parties;
(b) the
nature of the information;
(c) the
names of the persons who appear to be acquainted with the circumstances of the
case;
(d) whether
any offence appears to have been committed and, if so, by whom
(e) whether
the accused has been arrested;
(f) whether
he had been released on his bond and, if so, whether with or without sureties;
and
(g) whether
he has been forwarded in custody under Section 170.
As
observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar (1980 (3) SCC 152); that the
statutory requirement of the report under Section 173(2) would be complied with
if the various details prescribed therein are included in the report. This
report is an intimation to the magistrate that upon investigation into a
cognizable offence the investigating officer has been able to procure
sufficient evidence for the Court to inquire into the offence and the necessary
information is being sent to the Court. In fact, the report under Section
173(2) purports to be an opinion of the investigating officer that as far as he
is concerned he has been able to procure sufficient material for the trial of
the accused by the Court. The report is complete if it is accompanied with all
the documents and statements of witnesses as required by Section 175(5).
Nothing more need be stated in the report of the Investigating Officer. It is
also not necessary that all the details of the offence must be stated. The
details of the offence are required to be proved to bring home the guilt to the
accused at a later stage i.e. in the course of the trial of the case by
adducing acceptable evidence." Mere non-description of the offences in
detail is really not material. At the stage of framing charge it can be urged
that no offence is made out.
With
reference to the absence of allegations under Sections 8 and 9 of the Act, it
is submitted whether the charge sheet has reference to any particular material
referred to in it and the relevance of it is to be considered at the time when
the charge is framed. It would not be desirable to analyse minutely the
materials as at that stage the Court is primarily concerned with the question
as to whether charge is to be framed in respect of any offence and whether
there prima facie appears existence of any material and not the sufficiency of
the materials. Therefore, the appellants' stand that the charge sheet does not
refer to any particular material cannot be accepted, more particularly, in view
of the specific materials referred to by learned counsel for the
respondent-State.
It is
the stand of the State that the appellant-Parkash Singh Badal was the fulcrum
around which the entire corruption was woven by the members of his family and
others and it was his office of Chief Minister-ship which had been abused.
Therefore, Sections 8 and 9 of the Act would not be applicable to him and would
apply only to his wife, son and others. It is the stand of the appellants that
in the documents filed only Section 13(1) has been only mentioned and not the
exact alleged infraction. It is to be noted that the offence of criminal mis-conduct
is defined in Section 13. Five clauses contained in the said provision
represent different types of infraction under which the offence can be said to
have been committed. If there is material to show that the alleged offence
falls in any of the aforesaid categories, it is not necessary at the stage of
filing of the charge sheet to specify as to which particular clause covers the
alleged offence. It is the stand of the respondent-State that clauses (a), (b)
(d) and (e) are all attracted and not clause (c). Therefore, the sanctioning
authority has rightly referred to Section 13(1) and that does not make the
sanction order vulnerable.
The
sanctioning authority is not required to separately specify each of the offence
against the accused public servant.
This
is required to be done at the stage of framing of charge.
Law
requires that before the sanctioning authority materials must be placed so that
the sanctioning authority can apply his mind and take a decision. Whether there
is an application of mind or not would depend on the facts and circumstances of
each case and there cannot be any generalized guidelines in that regard.
The
sanction in the instant case related to offences relatable to Act. There is a
distinction between the absence of sanction and the alleged invalidity on
account of non application of mind. The former question can be agitated at the
threshold but the latter is a question which has to be raised during trial.
Great
emphasis has been led on certain decisions of this Court to show that even in
relation to offences punishable under Section 467 and 468 sanction is
necessary. The foundation of the position has reference to some offences in Rakesh
Kumar Mishra's case (supra). That decision has no relevance because ultimately
this Court has held that the absence of search warrant was intricately with the
making of search and the allegations about alleged offences had their matrix on
the absence of search warrant and other circumstances had a determinative role
in the issue. A decision is an authority for what it actually decides.
Reference to a particular sentence in the context of the factual scenario
cannot be read out of context.
The
offence of cheating under Section 420 or for that matter offences relatable to
Sections 467, 468, 471 and 120B can by no stretch of imagination by their very
nature be regarded as having been committed by any public servant while acting
or purporting to act in discharge of official duty.
In
such cases, official status only provides an opportunity for commission of the
offence.
In Baijnath
v. State of M.P. (1966 SCR 210) the position was
succinctly stated as follows:
"..it
is the quality of the Act that is important and if it falls within the scope
and range of his official duty the protection contemplated by Section 197 of
the Code of Criminal Procedure will be attracted." So far as the appellant
Sukhbir Singh Badal is concerned, the stand is that he being a member of the
Parliament is a public servant and cannot be charged with offences under
Sections 8 and 9 of the Act. His contention is that Sections 8, 9, 12, 14 and
24 of the Act are applicable to private persons and not to public servants. The
opening word of Sections 8 and 9 is "whoever". The expression is very
wide and would also cover public servants accepting gratification as a motive
or reward for inducing any other public servant by corrupt or illegal means.
Restricting the operation of the expression by curtailing the ambit of Sections
8 and 9 and confining to private persons would not reflect the actual
legislative intention.
If
Section 8 is analytically dissected then it would read as below:
(i)
Whoever
(ii)
Accepts or obtains gratification from any person
(iii)
For inducing any public servant (by corrupt or illegal means)
(iv) To
render or attempt to render any services or disservice (etc.)
(v)
With any public servant (etc.)
So far
as Section 9 is concerned the only difference is that inducement is "by the
exercise of personal influence". The above analysis shows that public
servants may be involved.
Sections
8 and 9 of the Act correspond to Sections 162 and 163 of IPC. During the
currency of Old Act, Sections 161 to 165A of IPC were operating. This Court had
occasion to examine Section 5(1)(d) of the Old Act and Sections 161 and 162
IPC. It has been held that they constitute different offences. [See Ram Krishan
and Anr. v. State of Delhi (AIR 1956 SC 476)] In view of the
above, it would not be permissible to contend that a public servant would be
covered by Section 13(1)(d) (similar to section 5(1)(d) of Old Act) and
therefore the public servant would not be covered by Sections 8 and 9 of the
Act. The offences under Section 13(1)(d) and the offences under Sections 8 and
9 of Act are different and separate.
Assuming,
Section 13(1)(d)(i) covers public servants who obtain for 'himself or for any
other person' any valuable thing or pecuniary advantage by corrupt or illegal
means, that would not mean that he would not fall within the scope of Sections
8 and 9. The ingredients are different. If a public servant accepts
gratification for inducing any public servant to do or to forbear to do any
official act, etc. then he would fall in the net of Sections 8 and 9. In
Section 13(1)(d) it is not necessary to prove that any valuable thing or
pecuniary advantage has been obtained for inducing any public servant.
Another
difference is that Section 13(1)(d) envisages obtaining of any valuable thing
or pecuniary advantage. On the other hand Sections 8 and 9 are much wider and
envisages taking of "any gratification whatever". Explanation (b) of
Section 7 is also relevant.
The
word 'gratification' is not restricted to pecuniary gratifications or to
gratifications estimable in money. Thus, Sections 8 and 9 are wider than
Section 13(1)(d) and clearly constitute different offences.
Section
24 envisages the making of a statement by a person in any proceeding against
the public servant for an offence under Sections 7 to 11 or Sections 13 and 15.
It is clear from Section 24 that there can be a proceeding against public
servant for which offence under Sections 7 to 11 which per se includes Sections
8 and 9. On the face of this provision, it cannot be contended that a public
servant cannot be proceeded against Sections 8 and 9.
Great
emphasis has been led by the appellants on some factual scenario to show that
the complainant was close to incumbent Chief Minister and he has been rewarded
subsequently for making the complaint. In essence, the plea is that mala fides
are involved. This allegation of mala fides is also linked with the so called
conferment of power with the particular police station at Mohali and conferment
of jurisdiction on a particular Special Judge by Notification dated 17.11.2003.
A plea
of mala fides has not only to be clearly pleaded but specifically proved by
adducing cogent evidence. Mere allegation and suspicions would not be
sufficient. The person against whom mala fides conduct is attributed is
interestingly not a party in the proceedings.
So far
as the allegation that political opponent had lodged the complaint is
concerned, that itself is not sufficient for the Court to interfere. When the
allegation is made, investigation is undertaken to find out whether there is
any substance in the allegation. Merely because the political opponent was the
complainant that does not per se lead to an inference that the complaint has to
be thrown out or that no notice should be taken thereof.
Before
dealing further whether the submissions ought to prevail, the legal principles
governing the registration of a cognizable offence and the investigation
arising thereon need to be noted. Section 154(1) is the relevant provision
regarding the registration of a cognizable offence and that provision reads as
follows:
"154.
Information in cognizable cases.-(1) Every information relating to the
commission of a cognizable offence, if given orally to an officer in charge of
a police station, shall be reduced to writing by him or under his direction,
and be read over to the informant;
and
every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof
shall be entered in a book to be kept by such officer in such form as the State
Government may prescribe in his behalf".
The
above sub-section corresponds to Section 154 of the Old Code (Act of 1898 to
which various amendments were made by Act 26 of 1955 and also to Section 154 of
the Code of Criminal Procedure of 1882 (Act 10 of 1882) except for the slight
variation in that expression 'local government' had been used in 1882 in the
place of 'State Government'. Presently, on the recommendations of the
Forty-first Report of the Law Commission, the sub-sections (2) and (3) have
been newly added but we are not concerned with those provisions as they are not
relevant for the purpose of the disposal of this case except for making some
reference at the appropriate places, if necessitated. Section 154(1) regulates
the manner of recording the first information report relating to the commission
of a cognizable offence.
The
legal mandate enshrined in Section 154 (1) is that every information relating
to the commission of a 'cognizable offence' (as defined under section 2 (c) of
the Code) if given orally ( in which case it is to be reduced into writing) or
in writing to "an officer incharge of a police station" (within the
meaning of Section 2(o) of the Code) and signed by the informant should be
entered in a book to be kept by such officer in such form as the State
Government may prescribe which form is commonly called as "First
Information Report" and which act of entering the information in the said
form is known as registration of a crime or a case.
At the
stage of registration of a crime or a case on the basis of the information
disclosing a cognizable offence in compliance with the mandate of Section 154
(1) of the Code, the concerned police officer cannot embark upon an enquiry as
to whether the information, laid by the informant is reliable and genuine or
otherwise and refuse to register a case on the ground that the information is
not reliable or credible. On the other hand, the officer in charge of a police
station is statutorily obliged to register a case and then to proceed with the
investigation if he has reason to suspect the commission of an offence which he
is empowered under Section 156 of the Code to investigate, subject to the
proviso to Section 157 thereof. In case, an officer in charge of a police station
refuses to exercise the jurisdiction vested in him and to register a case on
the information of a cognizable offence reported and thereby violates the
statutory duty cast upon him, the person aggrieved by such refusal can send the
substance of the information in writing and by post to the Superintendent of
Police concerned who if satisfied that the information forwarded to him
discloses a cognizable offence, should either investigate the case himself or
direct an investigation to be made by any police officer subordinate to him in
the manner provided by sub-section (3) of Section 154 of the Code.
It has
to be noted that in Section 154(1) of the Code, the legislature in its
collective wisdom has carefully and cautiously used the expression
"information" without qualifying the same as in Section 41(1)(a) or
(g) of the Code wherein the expressions, "reasonable complaint" and
"credible information" are used. Evidently, the non-qualification of
the word "information" in Section 154(1) unlike in Section 41(1)(a)
and (g) of the Code may be for the reason that the police officer should not
refuse to record an information relating to the commission of a cognizable
offence and to register a case thereon on the ground that he is not satisfied
with the reasonableness or credibility of the information. In other words,
'reasonableness' or 'credibility' of the said information is not a condition
precedent for registration of a case. A comparison of the present Section 154
with those of the earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word "information"
without qualifying the said word. Section 139 of the Code of Criminal Procedure
of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that
'every complaint or information' preferred to an officer incharge of a police
station should be reduced into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter
read that 'every complaint' preferred to an officer incharge of a police
station shall be reduced in writing. The word 'complaint' which occurred in
previous two Codes of 1861 and 1872 was deleted and in that place the word
'information' was used in the Codes of 1882 and 1898 which word is now used in
Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the
Codes makes it clear that the condition which is sine-qua-non for recording a
First Information Report is that there must be an information and that
information must disclose a cognizable offence.
It is,
therefore, manifestly clear that if any information disclosing a cognizable
offence is laid before an officer incharge of a police station satisfying the
requirements of Section 154(1) of the Code, the said police officer has no
other option except to enter the substance thereof in the prescribed form, that
is to say, to register a case on the basis of such information.
In
this connection, it may be noted that though a police officer cannot
investigate a non-cognizable offence on his own as in the case of cognizable
offence, he can investigate a non- cognizable offence under the order of a
Magistrate having power to try such non-cognizable case or commit the same for
trial within the terms under Section 155(2) of the Code but subject to Section
155(3) of the Code. Further, under sub- section (4) to Section 155, where a
case relates to two offences to which at least one is cognizable, the case
shall be deemed to be a cognizable case notwithstanding that the other offences
are non-cognizable and, therefore, under such circumstances the police officer
can investigate such offences with the same powers as he has while
investigating a cognizable offence.
The
next key question that arises for consideration is whether the registration of
a criminal case under Section 154(1) of the Code ipso facto warrants the
setting in motion of an investigation under Chapter XII of the Code.
Section
157(1) requires an Officer Incharge of a Police Station who 'from information
received or otherwise' has reason to suspect the commission of an offence-that
is a cognizable offence-which he is empowered to investigate under Section 156,
to forthwith send a report to a Magistrate empowered to take cognizance of such
offence upon a police report and to either proceed in person or depute any one
of his subordinate Officers not being below such rank as the State Government
may, by general or special order, prescribe in this behalf, to proceed to the
spot, to investigate the facts and circumstances of the case and if necessary,
to take measures for the discovery and arrest of the offender. This provision
is qualified by a proviso which is in two parts (a) and (b). As per Clause (a)
the Officer Incharge of a Police Station need not proceed in person or depute a
subordinate officer to make an investigation on the spot if the information as
to the commission of any such offence is given against any person by name and
the case is not of a serious nature. According to Clause (b), if it appears to
the Officer Incharge of a Police Station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case. Sub-section
(2) of Section 157 demands that in each of the cases mentioned in Clauses (a)
and (b) of the proviso to Sub-section (1) of Section 157, the Officer Incharge
of the Police Station must state in his report, required to be forwarded to the
Magistrate his reasons for not fully complying with the requirements of Sub-
section (1) and when the police officer decides not to investigate the case for
the reasons mentioned in Clause (b) of the proviso, he in addition to his
report to the Magistrate, must forthwith notify to the informant, if any, in
such manner as may be prescribed by the State Government, the fact that he will
not investigate the case or cause the case to be investigated. Section 156(1)
which is to be read in conjunction with Section 157(1) states that any Officer Incharge
of a Police Station may without an order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within
the limits of the concerned police station would have power to enquire into or
try under provisions of Chapter XIII. Section 156(3) vests a discretionary
power on a Magistrate empowered under Section 190 to order an investigation by
a police officer as contemplated in Section 156(1). It is pertinent to note
that this provision does not empower a Magistrate to stop an investigation
undertaken by the police. (See State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (1980 (1) SCC 554) In
that case, power of the Magistrate under Section 156(3) to direct further
investigation after submission of a report by the investigating officer under
Section 173(2) of the Code was dealt with. It was observed as follows:
"The
power of the Magistrate under Section 156(3) to direct further investigation is
clearly an independent power and does not stand in conflict with the power of
the State Government as spelt out hereinbefore. The power conferred upon the
Magistrate under Section 156(3) can be exercised by the Magistrate even after
submission of a report by the investigating officer which would mean that it
would be open to the Magistrate not to accept the conclusion of the
investigating officer and direct further investigation. This provision does not
in any way affect the power of the investigating officer to further investigate
the case even after submission of the report as provided in Section
173(8)." The above position has been highlighted in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992
Supp (1) SCC 335).
In
State of Punjab and Anr. v Gurdial Singh and Ors.
(1980 (2) SCC 471) it was observed as follows:
"..If
the use of the power is for the fulfilment of a legitimate object the actuation
or catalysation by malice is not legicidal." At this stage it needs to be
clarified that the obligation to register a case is not to be confused with the
remedy if same is not registered. Issue of the remedy has been decided by this
Court in several cases. (See Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SCC 768) The
ultimate test therefore is whether the allegations have any substance. An
investigation should not be shut out at the threshold because a political
opponent or a person with political difference raises an allegation of
commission of offence. Therefore, the plea of mala fides as raised cannot be
maintained.
So far
as conferment of jurisdiction with the police station over the whole State is
concerned, it appears that the same was created on 31.10.1994 by the then
Government of Chandigarh and by order dated 20.4.1995 the office of
Superintendent of Police, Vigilance Flying Squad-I/Criminal Investigation
Agency, Chandigarh was shifted to Police Station, Mohali. This order continued
to operate subsequently.
As
rightly contended by learned counsel for the respondent- State, the fresh
notification was issued creating some more police stations qua other districts.
It is pointed out that PS Mohali falls within the Ropar district and within the
area of Special Judge, Ropar as was specified in consultation with the Punjab and Haryana High Court. The Special
Judges are transferred by the High Court and, therefore, the allegation of
choosing any Special Judges with oblique motive is clearly without any
substance. The notification regarding the re- organization of the police
station with Police Station, Mohali having jurisdiction over the whole State of
Punjab was notified on 19.12.2002.
At
this juncture, it is relevant to note that allegations of impropriety were made
because of the Notification dated 17.11.2003 relating to jurisdiction of the
Special Judge. A few relevant aspects need to be noted at this juncture. The
Court of Special Judge, Ropar was created by Notification dated 5.1.1990 of the
State Government which was issued in consultation with the High Court for the
area of Ropar District.
Another
Notification was issued on 5.9.2000 in consultation with the High Court. By
this Notification, Sessions Judges in the State of Punjab were appointed as Special Judges
within their respective districts. The Notification dated 31.10.1994 creating
P.S., Chandigarh with Statewide jurisdiction which
was shifted to P.S., Mohali by order dated 20.4.1995 was already in existence
when Sessions Judges were made Special Judges. There is no dispute about this
fact.
The
controversy revolves around the Notification dated 19.10.2002 regarding P.S., Mohali
with Statewide jurisdiction.
According
to learned counsel for the respondent-State it represents a continuity and
there was no new creation. So far as the Notification dated 17.11.2003 is
concerned, undisputedly, the expression used is "appoint". It was
clarified that though the said expression has been used, it did not actually
mean appointment of a Sessions Judge and First Additional Sessions Judge, Ropar
as Special Judges. They were already appointed and designated as stated in the
Notification itself. What was intended related to allocation of cases
registered at P.S., Mohali to the existing Courts of Special Judges, Ropar.
There is also no dispute that P.S., Mohali falls within the area of district Ropar
over which Special Judges, Ropar had jurisdiction as approved by the High
Court.
Stand
of learned counsel for the State is that since the impugned notification
allocated certain cases to Courts of Special Judges already established with
the consultation with the High Court, no further consultation was required.
It is
pointed out that said re-allocation does not impinge upon the control of the
High Court as envisaged by Article 235 of the Constitution.
There
is no doubt that the control of the High Court is comprehensive, exclusive and
effective and it is to subserve the basic feature of Constitution, i.e.
independence of judiciary. [See High Court of Judicature for Rajasthan v. Ramesh
Chand Paliwal and Anr. (1998 (3) SCC 72) and Registrar (Admn.), High Court of Orissa,
Cuttack v. Sisir Kanta Satapathy (dead) by Lrs.
and Anr. ( 1999 (7) SCC 725)] Articles 233 and 234 of the Constitution are not
attracted because this is not a case where appointment of persons to be Special
Judges or their postings to a particular Special Court is involved. It is
however factually conceded that the expression "notwithstanding the
jurisdiction of other Special Judges in the State of Punjab" is not
necessary.
Once
group of cases are allocated to Special Court, consequentially other Special
Courts cannot deal with them.
Use of
the afore-said expression was really un-necessary. We consider it to be
severable and so direct.
At
this juncture, it is to be noted that learned counsel for the State submitted
that to avoid any fear of forum shopping, the State is even willing to abide by
the decision of this Court if the trial takes place in Chandigarh or wherever
this Court directs, and to show that the State has no intention to the trial
being conducted at a particular place and to prove its transparency the stand
is taken. We do not think it necessary to so direct, because the expression
"notwithstanding the jurisdiction of other Special Judges in the State of
Punjab" has already been stated to be unnecessary and would be of no
consequence. That being so, the plea in that regard as raised by the appellants
also fails.
Since
all the challenges have been held to be without substance, the inevitable
result is that the appeals deserve to be dismissed which we direct.
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