State Th.
CBI Vs. Parmeshwaran Subramani & ANR. [2009] INSC 1571 (11 September 2009)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 1758 OF 2009 (Arising out of SLP(Crl.) No. 1735 of 2007) State through
Central Bureau of Investigation ...Appellant Versus Parmeshwaran Subramani
& Anr. ...Respondents
B.SUDERSHAN
REDDY,J.
1.
Leave granted.
2.
This appeal, which has come before us by special leave, is
directed against the judgment of the High Court of Bombay at Goa dated
23.11.2006 in Criminal Revision Application No. 49 of 2006, by which the
learned Single Judge affirmed the conclusion of the learned Special Judge, 2
North Goa, Panaji that previous sanction was necessary to prosecute a Public
Servant under Section 12 of the Prevention of Corruption Act, 1988.
3.
The brief factual matrix of the case is as under:
On source
information the Central Bureau of Investigation, Goa registered a preliminary
enquiry being PE 2(A)/2002/CBI/ACB against the respondent no. 1 and others. The
respondent No. 1 was the then Commissioner of Customs and Central Excise,
Panaji. It was alleged that respondent no. 1 along with others purchased 48
ready built flats for Customs Department from the respective firms at an
exorbitant price of Rs. 3,55,69,150/- though the actual market value was much
less than the price paid. It was further alleged that undue favour of
respondent no. 1 caused huge loss of Rs. 1.04 crores to the department. Shri
Ram Avtar Yadav, Inspector CBI/ ACB/ Goa was conducting the enquiry into said
allegations.
4.
The respondent No. 2 was the Inspector of Central Excise, Goa. It
was alleged that on 24.9.2002, the respondent no. 2 made a request on telephone
to Shri Ram Avtar Yadav, Inspector to meet him in connection with some personal
work. On the next day i.e. 25.9.2002, the respondent no. 2 met Shri Ram Avtar
Yadav, Inspector and during the course of meeting he made a request on behalf
of the respondent no. 1 to close the case and also conveyed that the respondent
no. 1 wanted to meet him in connection with the said case and to offer some
gratification. On the same day, the Inspector (Complainant) lodged a written
complaint against both the respondents before Superintendent of Police,
CBI/ACB/Goa. Accordingly, RC8(A) /20J2 /CBI /ACB/ Goa, was registered against
both the respondents. Both the respondents met the complainant at a restaurant
and offered him a bribe of Rs. 1 lakh. On 26.9.2002, the respondent no. 1
withdrew an amount of Rs. 50,000/- from his savings bank account and handed
over the same to the respondent no. 2 to deliver the said amount 4 as part of
the bribe to the complainant. A trap was laid in the presence of two
independent witnesses. The respondent no. 2 was caught red handed while
offering and delivering bribe on behalf of respondent no. 1 at the residence of
the complainant. Thereafter on completion of the investigation charge sheet was
filed in the court of learned Special Judge against both the respondents for
the offences punishable under Section 120B read with Section 12 of the
Prevention of Corruption Act, 1988 (hereinafter referred to as "the
Act").
5.
The learned Special Judge having perused the chargesheet and
material on record came to the conclusion that previous sanction as required
under Section 19 of the Act, was necessary to prosecute a Public Servant for
the offence punishable under Section 12 of the Act and accordingly declined to
take cognizance of the offence.
Being
aggrieved by the order of the learned Special Judge, the appellant filed the
Criminal Revision Application No. 49 of 2006 before the High Court of Bombay at
Goa. The High 5 Court dismissed the revision of the appellant and upheld the
discharge of the respondents for want of sanction under Section 19 of the Act.
Hence
this appeal.
6.
We have heard the learned counsel for the parties and perused the
material available on record.
7.
The short question that arises for our consideration in this
appeal is whether any previous sanction as such is necessary for taking
cognizance of an offence punishable under Section 12 of the Act?
8.
Shri H.P. Rawal, learned Additional Solicitor General appearing on
behalf of the appellant submitted that the court is not precluded from taking
cognizance of an offence punishable under Section 12 of the Act against a
public servant inasmuch as the said provision does not provide for any such
previous sanction and the requirement of previous sanction is only in respect
of offences punishable under Sections 7, 10, 11, 13 and 15 of the Act.
9.
M/s. Krishnan Venugopal, learned senior counsel and Santosh Kumar,
learned counsel for the respondents supported the reasoning and conclusion of
the High Court that previous sanction for taking cognizance against a public
servant would be equally necessary in respect of the offence punishable under
Section 12 of the Act also.
10.
In order to appreciate the submissions that were made before us it
may be necessary to notice the relevant provisions of the Act. Section 12 of
the Act which provides for punishment for abetment of offences defined in
Section 7 or 11 reads as under:
"Section
12 - Punishment for abetment of offences defined in section 7 or 11. - Whoever
abets any offence punishable under Section 7 or Section 11 whether or not that
offence is committed in consequence of that abetment, shall be punishable with
imprisonment for a term which shall be not less than six months but which may
extend to five years and shall also be liable to fine.
11.
Section 19 of the Act which deals with previous sanction for
prosecution of an offence punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant, reads as under:
"Section
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 8 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 9 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.
12.
In the instant case, we are not concerned with the question as to
whether the respondents have committed any offence punishable under Section
120B of the Indian Penal Code read with Section 12 of the Act. We have to
proceed on the basis of the allegations made by the appellant against the
respondents without going into the truth or otherwise of the allegations so
made in the charge sheet. The issue that arises for consideration is whether
the learned Special Judge as well as the High Court have committed any error in
refusing to take cognizance of the offence punishable under 10 Section 12 of
the Act alleged to have been committed by the respondents on the ground that
there has been no previous sanction of the Government as required under Section
19 of the Act?
13.
The courts below relying upon the decision in Sharad view that
Section 12 cannot be treated as being wholly distinct or independent from
Section 7 or 11 because it speaks of abetment of those offences punishable
under Section 7 or 11 as the case may be. The view taken by the High Court was
that though an accused can be charged independently under Section 12, the
existence of an offence under Section 12 is dependent upon Section 7 or 11.
Therefore,
so long as a sanction is required for punishment of the principal offence under
Section 7 or 11 of the Act, sanction would equally be necessary in regard to
punishment for abetment of those offences.
14.
In our considered opinion, the interpretation sought to be placed
by the High Court on Section 19 of the Act is 1 [1993 Mah. L.J. 284] 11 wholly
erroneous. The court at that stage cannot go into the question whether there
was any abetment of any offence punishable under Section 7 or 11. Section 12 of
the Act, in clear and categorical terms, speaks that whoever abets any offence
punishable under Section 7 or 11 whether or not that offence is committed in
consequence of that abetment, shall be punishable with imprisonment for a term
as provided thereunder. It is thus clear that abetment of any offence
punishable under Section 7 or 11 is itself a distinct offence. The offence
punishable under Section 7 or 11 whether actually committed by a public servant
is of no consequence. It is precisely for the said reason Section 19 of the Act
specifically omits Section 12 from its purview. The courts by process of
interpretation cannot read Section 12 into Section 19 as it may amount to
rewriting the very Section 19 itself. It is settled law that where there is no
ambiguity and the intention of the legislature is clearly conveyed, there is no
scope for the court to undertake any exercise to read something into the
provisions which the 12 legislature in its wisdom consciously omitted. Such an
exercise if undertaken by the courts may amount to amending or altering the
statutory provisions.
15.
In a plethora of cases, it has been stated that where, the
language is clear, the intention of the legislature is to be gathered from the
language used. It is not the duty of the court either to enlarge the scope of
legislation or the intention of the legislature, when the language of the
provision is plain. The court cannot rewrite the legislation for the reason
that it had no power to legislate. The court cannot add words to a statute or
read words into it which are not there. The court cannot, on an assumption that
there is a defect or an omission in the words used by the legislature, correct
or make up assumed deficiency, when the words are clear and unambiguous. Courts
have to decide what the law is and not what it should be. The courts adopt a
construction which will carry out the obvious intention of the legislature but
cannot set at naught legislative judgment because such course would be 13
subversive of constitutional harmony [See: Union of India happened that a
private complaint was made by the respondent therein against the appellant
after the requisite sanction under Section 6 of Prevention of Corruption
Act,1947 was given by the Government. The Court of Special Judge took
cognizance of the alleged offences under Section 8 (1) of the Criminal Law
Amendment Act, 1952.
On behalf
of the appellant an application was made in that court questioning jurisdiction
of that court inter alia on the ground that it could not take cognizance of any
of the offences enumerated in Section 6 (1) (a) and (b) of the said Act upon a
private complaint of facts constituting the offences. The courts below rejected
the contention. This Court observed: "It is well-established cannon of
construction that the court should read the section as it is and cannot rewrite
it to suit its convenience; nor does any 2 (1992) Supp. (1) SCC 323 3 (1984) 2
SCC 500 14 canon of construction permit the court to read the section in such
manner as to render it to some extent otiose." This Court further
observed: "Punishment of the offender in the interest of the society being
one of the objects behind penal statutes enacted for larger good of the
society, right to initiate proceedings cannot be whittled down, circumscribed
or fettered by putting it into a strait-jacket formula of locus standi. To hold
that a specific statutory exception exists: the court would require an
unambiguous statutory provision and the tangled web of argument for drawing a farfetched
implication cannot be a substitute for an express statutory provision." this
Court once again reiterated that where the language is clear, the intention of
the legislature is to be gathered from the language used and the attention
should be paid to what has been said as also to what has not been said. In that
case the Jharkhand High Court held that even though there 4 (2005) 10 SCC 437
15 is no specific provision in Section 52 (3) of the Indian Forest Act, 1927 as
amended by Bihar Act 9 of 1990, a vehicle seized for alleged involvement in
commission of forest offence can be released on payment of fine in lieu of
confiscation. The High Court took the view that it would be inequitable to
direct confiscation and, therefore, it was held that to meet the interest of
justice the power to impose fine in lieu of confiscation can be read into under
Section 52(3) of the Act. Accordingly, a fine was imposed and the seizing
authority was directed to release the vehicle on payment thereof. This Court
interfered with the judgment observing that the view taken by the High Court
was against the settled principles relating to statutory interpretation. It was
observed:
"Where,
however, the words were clear, there is no obscurity, there is no ambiguity and
the intention of the legislature is clearly conveyed, there is no scope for the
court to innovate or take upon itself the task of amending or altering the
statutory provisions. In that situation the Judges should not proclaim that
they are playing the role of a law-maker merely for an exhibition of judicial
valour. They have to 16 remember that there is a line, though thin, which
separates adjudication from legislation. That line should not be crossed or
erased. This can be vouchsafed by "an alert recognition of the necessity
not to cross it and instinctive, as well as trained reluctance to do so".
(See: Frankfurter, "Some Reflections on the Reading of Statutes" in
Essays on Jurisprudence, Columbia Law Review, p.51.)"
It was
further observed:
"Two
principles of construction one relating to casus omissus and the other in
regard to reading the statute as a whole appear to be well settled. Under the
first principle a casus omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the four corners of
the statute itself but at the same time a casus omissus should not be readily
inferred and for that purpose all the parts of a statute or section must be
construed together and every clause of a section should be construed with
reference to the context and other clauses thereof so that the construction to
be put on a particular provision makes a consistent enactment of the whole
statute. This would be more so if literal construction of a particular clause
leads to manifestly absurd or anomalous results which could not have been
intended by the Legislature."
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18.
Keeping in view of the aforesaid legal principles the inevitable
conclusion is that the High Court fell into error in reading into Section 19 of
the Act, the prohibition not to take cognizance of an offence punishable even
under Section 12 of the Act without previous sanction of the Government which
is not otherwise provided for. The language employed in Section 19 of the Act
is couched in mandatory form directing the courts not to take cognizance of an
offence punishable under Sections 7, 10, 11, 13 and 15 only, alleged to have
been committed by a public servant, except with the previous sanction of the
Government. The legislature consciously in its wisdom omitted the offence of
abetment of any offence punishable under Section 7 or 11 of the Act thereby
making its intention clear that no previous sanction as such would be required
in cases of offence punishable under Section 12 of the Act. The High Court read
something into Section 19 on its own thereby including Section 12 also into its
ambit, which in our opinion is impermissible.
19.
The judgment of the High Court is clearly erroneous, deserves to
be set aside which we direct.
20.
The appeal is accordingly allowed.
..........................................J. ( R.V. Raveendran)
..........................................J. (B. Sudershan Reddy)
New Delhi;
September 11, 2009.
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