Public servant status and corruption sanction: MLA not covered by Section 21, and no sanction needed when abused office had ended.

A Member of the Legislative Assembly is not a public servant under Section 21 of the Indian Penal Code merely because of legislative office, salary or allowances, or participation in legislative business; the Court held that such functions do not fit the relevant statutory categories. Under Section 6 of the Prevention of Corruption Act, 1947, sanction is required only when the accused is a public servant at the time cognizance is sought and the sanction must come from the authority competent to remove the accused from the office alleged to have been abused. Because the accused had ceased to hold the office complained of, no sanction was required on these facts and the prosecution could proceed.

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Issues: (i) Whether a Member of the Legislative Assembly is a public servant within Section 21 of the Indian Penal Code. (ii) Whether sanction under Section 6 of the Prevention of Corruption Act, 1947 was required for prosecution on the facts of the case and, if so, whether the sanctioning authority had to be the authority competent to remove the accused from the office alleged to have been abused.

Issue (i): Whether a Member of the Legislative Assembly is a public servant within Section 21 of the Indian Penal Code.

Analysis: The expression "public servant" was examined in the light of the text of Section 21, its historical evolution, and the constitutional position of a Member of the Legislative Assembly. The Court held that a legislator is not in the service of the Government, not in the pay of the executive Government, and not remunerated by fees for performance of public duty by the Government within Section 21(12)(a). It further held that participation in legislative business, including motions involving privilege or contempt, does not make a legislator a person empowered by law to discharge adjudicatory functions under Section 21(3), nor a person empowered to place or keep any person in confinement under Section 21(7).

Conclusion: A Member of the Legislative Assembly is not a public servant within Section 21 of the Indian Penal Code.

Issue (ii): Whether sanction under Section 6 of the Prevention of Corruption Act, 1947 was required for prosecution on the facts of the case and, if so, whether the sanctioning authority had to be the authority competent to remove the accused from the office alleged to have been abused.

Analysis: Section 6 bars cognizance only of offences alleged to have been committed by a public servant and the relevant date is the date when the court is asked to take cognizance. The protection is linked to the office alleged to have been misused or abused. Where the accused had ceased to hold the office of Chief Minister before cognizance was taken, and the complaint alleged abuse only of that office, no sanction was required for that prosecution. Even otherwise, the authority competent to grant sanction is the authority competent to remove the accused from the office actually alleged to have been abused, not from some other office merely because the accused continues to hold it.

Conclusion: No sanction was required on the facts, and the accused could not claim a sanction based on his status as Member of the Legislative Assembly.

Final Conclusion: The statutory bar to cognizance was inapplicable, and the discharge ordered by the Special Judge was unsustainable; the prosecution was permitted to proceed further.

Ratio Decidendi: For offences under Section 6 of the Prevention of Corruption Act, 1947, sanction is required only from the authority competent to remove the accused from the office alleged to have been abused, and a Member of the Legislative Assembly does not fall within Section 21 of the Indian Penal Code merely by virtue of holding legislative office and receiving salary and allowances.

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