State of West Bengal
Vs. Shyamadas Banerjee & ANR.  INSC 1501 (3 September 2008)
SUPREME COURT OF
INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1395_____ OF 2008
(Arising out of S.L.P.(Crl) No.2402 OF 2006) State of West Bengal ...Appellant
Shyamadas Banerjee & Another ...Respondents
short point for decision in this appeal is whether a Special Judge exercising
jurisdiction under the provisions of the West Bengal Criminal Law Amendment
(Special Courts) Act, 1949, (hereinafter referred to as "the Special
Courts Act, 1949"), can take 2 cognizance of an offence against a member
of the State Legislative Assembly (hereinafter referred to as "M.L.A.")
when he had ceased to be a M.L.A., though the offence was alleged to have been
committed when he was a sitting M.L.A.
the basis of certain newspapers reports one Nikhil Kishore Roy filed a Public
Interest Litigation in the Calcutta High Court against the respondent No.1,
Shri Shyamadas Banerjee, alleging that he had misused his official position as
M.L.A. by submitting forged and fictitious medical bills and fees for
prescription for Rs.1,65,530.30 on account of the treatment of his wife and his
mother between 8.9.1998 to 10.11.1998. The said Writ Petition, being No.1311 of
1999, was disposed of by a Division Bench of the Calcutta High Court on 3
23.6.1999, holding that the writ petitioner could have lodged a First
Information Report or filed a complaint petition before the concerned
Magistrate. Thereafter, on the basis of the F.I.R. lodged by Shri Nikhil Kumar
Roy investigation was started under Section 468, 471, 420 and 511 of the Indian
Penal Code, (hereinafter referred to as "IPC"), by the Hare Street
The respondent No.1
surrendered before the Chief Metropolitan Magistrate, Calcutta, on 17.1.2000,
and was released on bail. Charge- sheet was filed on 16.1.2003, on the basis
whereof the Special Court assumed jurisdiction under the Special Courts Act,
1949, against the respondent No.1 treating him to be a "public
servant" and framed charges against him under Section 420/468/471 and 511
by the order of the Special Judge 4th Court, Calcutta, taking cognizance on the
basis of the charge-sheet filed, the respondent No.1 moved the High Court in
revision (CRR No.1931 of 2003) alleging that the cognizance taken was illegal
since no sanction had been obtained by the investigating agency to file a
charge-sheet against him. The High Court disposed of the revision petition
granting liberty to the trial Judge to proceed with the matter while the
respondent No.1 was given liberty to adjudicate the points which had been taken
by him in the revision application before the learned trial Judge. Such
application was made by the petitioner on 10.9.2003, but the same was rejected
by the learned trial Judge which impelled the respondent No. 1 to once again
move the High Court in revision )CRR No.2364 of 2003).
the hearing of the revision application, at the very outset it was urged on
behalf of the respondent No.1 that since he had ceased to be a M.L.A. when
cognizance was taken by the learned Special Judge, such cognizance was bad and
the proceedings taken on the basis thereof stood vitiated. It was contended
that the Special Courts Act, 1949, enabled a Special Court to proceed against a
M.L.A. defined as a "public servant" under the Prevention of
Corruption Act, 1947 and not under the Prevention of Corruption Act, 1988. It
was also contended that even if the respondent No.1 was a M.L.A. at the time of
commission of the alleged offence, he ceased to be so when the charge-sheet was
filed and the cognizance was taken thereupon. It was further contended that
there was no specific statutory provision which provides that even 6 though a
person ceases to be a public servant, he could still be deemed to be a public
servant for the purpose of trial under the provisions of the Special Courts
Act, 1949, in respect of offences alleged to have committed before he ceased to
be a public servant. It was submitted that, in the absence of such a provision,
the charges framed and cognizance taken by the Special Judge was bad in law and
liable to be quashed.
examining the aforesaid question in detail, the learned single Judge of the
High Court was of the view that the respondent No.1 was neither a M.L.A. nor a
public servant when cognizance was taken by the Special Judge. No sanction was,
therefore, necessary for his prosecution, but at the same time the trial of the
case could not be proceeded by the Special Judge. On the basis 7 of the
aforesaid conclusion, the High Court allowed the revision application and
quashed the cognizance taken by the Special Court, but observed that the same
would not prevent the prosecuting machinery from initiating further and/or
fresh proceedings in accordance with law before the Court having jurisdiction
to entertain the same.
is against the said order of the High Court that the instant appeal has been
filed by the State of West Bengal.
behalf of the appellant it was submitted that in view of the provisions of
Section 4 of the Special Courts Act, 1949, the High Court had erred in quashing
the cognizance taken by the Special Court. It was contended that it was in his
capacity as M.L.A. that the respondent No.1 had submitted two claims for
reimbursement of Rs.1,65,530.30 towards 8 medical expenses said to have been
incurred for treatment of his wife and mother at a particular nursing home. The
claim included the price of medicines said to have been purchased from a
particular shop. However, when the bills were scrutinized it was found that
there was no existence of either the nursing home or the medicine shop at the
addressed provided by the respondent no.1, who had abused his position as
M.L.A. for wrongful gain and to cheat the Government exchequer.
of the other points urged on behalf of the appellant is that the earlier writ
petition filed by respondent No.1 for quashing of the FIR had been rejected on
10.12.1999, and, thereafter, on completion of the investigations charge-sheet
was filed against the respondent No.1 before the 9 Special Judge 4th Court,
Calcutta, who, assumed jurisdiction under the provisions of the Special Courts
Act, 1949, treating the respondent No.1 to be a public servant. It was urged
that since the offence complained of was said to have been committed when the
respondent No.1 was a sitting M.L.A., the charge-sheet had been rightly filed
before the Special Judge on which cognizance was taken and charges were framed.
Altaf Ahmed, learned Senior Counsel appearing for the appellant, submitted that
the question as to whether a M.L.A. is a public servant within the meaning of
Section 21(12)(a) IPC was no longer res integra having been decided by a Constitution
Bench of this Court in the case of P.V.Narasimha Rao vs. State (C.B.I./S.P.E.),
(1998) 4 SCC 626, wherein in clear and unambiguous 10 language it was held
that Members of Parliament and M.L.A.s are public servants.
the question of sanction for prosecution it was urged that if a public servant
takes part in any activity, which is not part of his professional duties, no
sanction for prosecution, as contemplated in Section 197 Cr.P.C., would be
necessary to prosecute such a public servant before the Special Judge. In this
regard, reference was made to another Constitution Bench decision of this Court
in Satwant Singh vs. The State of Punjab, AIR 1960 SC 266.
was contended that in the facts of the case the order of the High Court could
not be sustained and was liable to be set aside.
stand of the respondent No.1, on the other hand, was that since the prosecution
had been launched under the Special Courts Act, 1949, having regard to Section
10 thereof, the provisions of the Prevention of Corruption Act, 1947
(hereinafter referred to as "the 1947 Act") would be applicable in
the instant case and the respondent No.1 would have to answer the description
of "public servant" as defined under the said Act and consequently under
Section 21 IPC for such prosecution. According to the respondent No.1, it
would, therefore, have to be decided for the purpose of maintaining the
prosecution whether an accused who was a public servant on the date of
commission of the offence would also have to be a public servant when
cognizance of the offence was taken by the court.
Pradip Ghosh, learned Senior Counsel who appeared for the respondent No.1,
submitted that the High Court had arrived at the right conclusion though on a
reasoning which was faulty. Reference was made to the provisions of Section 21
IPC and in particular clause (a) of the 12th description thereof, in support of
the stand taken by the respondent No.1 that on the date when cognizance was
taken by the Special Court he had ceased to be a public servant and that the
Special Judge could not, therefore, have assumed jurisdiction in the matter.
Ghosh submitted that the aforesaid question had been answered by the
Constitution Bench in R.S. Nayak vs. A.R. Antulay, (1984) 2 SCC 193, in which
in no uncertain terms it had been held that a M.L.A. is not a public servant
within the 13 meaning of Section 21 IPC and that no sanction was necessary to
prosecute a M.L.A. for any offence alleged to have been committed by him while
he was a sitting M.L.A. when he ceased to be a M.L.A. Consequently, the Special
Court had no jurisdiction to either entertain the charge- sheet filed on the
basis of the FIR lodged by Shri Nikhil Kumar Roy or to take cognizance on the
the decision in P.V.Narasimha Rao's case (supra), the stand taken on behalf of
the respondent No.1 was that in the said case the Constitution Bench was
considering a prosecution under the Prevention of Corruption Act, 1988, wherein
a "public servant" has been differently defined as against the
definition in the 1947 Act.
Ghosh submitted that the instant case was one of inherent lack of jurisdiction
since the Special Judge under the 1949 Act had no jurisdiction over the
respondent No.1 who ceased to be a public servant when his term as a M.L.A.
came to an end. Mr. Ghosh submitted that, having regard to the decision in
A.R.Antulay's case (supra) the respondent No.1 was never a public servant
within the meaning of Section 21 IPC.
the case made out on behalf of the respective parties, there is no dispute that
the respondent No.1 was elected as M.L.A. on 16.5.1996 and he ceased to be so
on 20.7.2000. There is also no dispute that the FIR was lodged against the
respondent No.1 on 28.6.1999 when he was a sitting M.L.A., and that
charge-sheet was filed on the basis thereof on 16.1.2003 and charges were
framed 15 on 29.7.2003. In other words, while the alleged offence was said to
have been committed when the respondent No.1 was a sitting M.L.A., charges were
framed and cognizance was taken long after he had ceased to be a M.L.A.
Accordingly, the main question which falls for decision in this case is whether
on the respondent No.1 ceasing to be a M.L.A. the Special Judge under the
Special Courts Act, 1949, could have assumed jurisdiction in the matter.
to whether a Member of Parliament or a Member of a Legislative Assembly are
public servants or not within the meaning of Section 21 IPC, has fallen for the
decision of the two Constitution Benches of this Court. While in A.R. Antulay's
case (supra) it has been categorically held that a M.L.A. is not a public
servant within the meaning of Section 16 21 IPC, in P.V. Narasimha Rao's case
(supra) the said view was distinguished and the majority view was that a Member
of Parliament and the State Legislatures are public servants for the purpose of
the Prevention of Corruption Act, 1988.
if we proceed on the basis of the view expressed by the Constitution Bench in
P.V.Narasimha Rao's case, we are still faced with the question whether the same
could be applied in regard to assumption of jurisdiction by the Special Court
under the Special Courts Act, 1949, wherein reference has been made to public
servant as defined in the Prevention of Corruption Act, 1947, and by extension
Section 21 IPC. In the said context it is necessary to refer to the provisions
of Section 4 of the Special Courts Act, 1949, which reads as follows:
17 "4. Offences
to be tried by Special Courts.- Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), or in any other law in force, the
offences specified in the schedule shall be triable by Special Courts only:
Provided that when
trying a case, a Special Court may also try any offence other than the offence
specified in the Schedule, with which the accused may, under the Code of
Criminal Procedure, 1973, be charged at the same trial:
Provided further that
every offence specified in the Schedule shall be tried by the Special Court
constituted for the particular area within which the offence was committed and
where there are more than one Special Court constituted for any particular
area, by such one of them as may be specified by the State Government by
notification in the Official Gazette."
schedule referred to in Section 4 of the Act provides for offences triable by
Special Judges. Paragraphs 2 and 3 of the said Schedule provides as follows:-
18 "2. An offence punishable under Section 409 of the Indian Penal Code
(Act XLV of 1860), if committed by a public servant or by a person dealing with
property belonging to Government as an agent of Government or by a person
dealing with property belonging to a Government company as defined in Section
617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government
company in respect of property - with which he is entrusted, or over which he
has dominion in his capacity of a public servant or in the way of his business
as such agent.
3. An offence
punishable under Section 417 or Section 420 of the Indian Penal Code, if
committed by a public servant or by a person dealing with property belonging to
Government as an agent of Government or by a person dealing with property
belonging to a Government company as defined in Section 617 of the Companies
Act, 1956 as an agent of such Government company, while purporting to act as
such public servant or agent."
2 of the 1947 Act which defines public servants is also reproduced herein below:
Interpretation - For the purpose of this Act.
means a public servant as defined in Section 21 of the Indian Penal Code."
other words, in order to fall within the scope of the 1947 Act an accused
person will have to answer the definition of "public servant" as
indicated in Section 21 IPC. The decision in P.V. Narasimha Rao's case (supra)
was dealing with a public servant as defined in Section 2(c)(viii) of the 1988
Act, which reads as follows:
- In this Act, unless the context otherwise requires - (a) xxx (b) xxx (c)
"public servant" means,- 20 (i) xxxxx (ii) xxxxx (iii) xxxxx (iv)
xxxxx (v) xxxxx (vi) xxxxx (vii) xxxxx (viii)any person who holds an office by
virtue of which he is authorized or required to perform any public duty."
in the instant case we are concerned with the prosecution under the Special
Courts Act, 1949, we will have to confine ourselves to the definition of
"public servant" within the scope of the 1947 Act which includes the
definition of "public servant" within the meaning of Section 21 IPC.
The said provision having been considered by the Constitution Bench in A.R.
Antulay's case, we are not expressing any opinion on that score.
However, the other
question which still remains to be answered is whether the provisions of the
Special Courts Act, 1949, would continue to apply to the respondent 21 No.2
when he ceased to be a public servant once he had completed his term as M.L.A.,
even if the decision in P.V.Narasimha Rao's case that Members of Parliament or
State Legislative Assembly are public servants for the purpose of the
Prevention of Corruption Act, 1988, is applied to the facts of this case.
aforesaid question has also been answered by the Constitution Bench in A.R.
Antulay's case (supra) while considering the provisions of Section 6 of the
1947 Act which deals with grant of sanction for prosecution of public servants.
Faced with a similar situation where prosecution had been launched against Shri
A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold
the said post though he continued to be a sitting M.L.A. of the State
Legislative Assembly when 22 cognizance was taken, the Constitution Bench,
inter alia, held that the object of providing for previous sanction for
prosecution of public servants was to save the public servant from harassment
of frivolous or unsubstantiated allegations. It was observed that the policy
under Section 6 is that there should not be unnecessary harassment of a public
servant. It was also held that the accused must be a public servant when he is
alleged to have committed the offence which could be committed by public
servants. While holding further that a trial without a valid sanction, where
one is necessary under Section 6, is a trial without jurisdiction, it was also
held that a valid sanction is required 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 23 servant, but by the time the Court
takes cognizance of the offence alleged to have been committed by him he had
ceased to be a public servant, no sanction would be necessary for taking
cognizance of the offence against him. As a necessary corollary, if the accused
ceases to be a public servant when the Court takes cognizance of the offence,
Section 6 is not attracted. In other words, the accused loses his protective
cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to
prosecution without sanction having to be obtained, which also necessarily
means that the Special Judge under the Special Courts Act, 1949, would cease to
have jurisdiction over the accused.
issue which was decided in P.V. Narasimha Rao's case (supra) which has been
relied upon 24 on behalf of the appellant, deals with a situation contemplated
under the Prevention of Corruption Act, 1988, while in the instant case we are
concerned with a prosecution under the Special Courts Act, 1949, which
specifically refers to the provisions of Section 21 IPC. That is the
distinguishing feature of the two decisions and since we are considering a case
involving the provisions of the 1947 Act, we are of the view that the decision
in A.R.Antulay's case is more apposite to the facts of the instant case.
the respondent No.1 ceased to be a Member of the State Legislature at a point
of time when cognizance was taken by the Special Judge 4th Court, Calcutta,
such cognizance and the proceedings taken on the basis thereof must be held to
have been vitiated.
accordingly, dismiss the appeal and confirm the decision of the High Court.
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