1984 (2) TMI 351 - SC - Indian Laws

Former Chief Minister prosecution can proceed without sanction under Section 6 after resignation before cognizance

R.S. NAYAK Versus A.R. ANTULAY

SC held that former Chief Minister of Maharashtra, who had resigned before court took cognizance, did not require sanction for prosecution under Section ... Resignation of Chief Minister of the State of Maharashtra - relevant date for determining the necessity of a valid sanction u/s 6 - sanction for prosecution of an MLA - validity of sanction from the Governor of Maharashtra - determine the authority competent to sanction prosecution of M.L.A. - Whether an M.L.A. is a public servant within the meaning of the expression in Sec. 12(a) - HELD THAT:- The allegations in the complaint are all to the effect that the accused misused or abused his office as Chief Minister for corrupt motives. By the time the Court was called upon to take cognizance of those offences, the accused had ceased to hold the office of Chief Minister. The sanction to prosecute him was granted by the Governor of Maharashtra but this aspect we consider irrelevant for concluding that no sanction was necessary to prosecute him under Sec. 6 on the date on which the court took cognizance of the offences alleged to have been committed by the accused. Assuming that as M.L.A. that aspect becomes immaterial. Further Sec. 6 postulates existence of a valid sanction for prosecution of a public servant for offences punishable under Secs. 161, 164, 165 IPC and Sec. 5 of the 1947 Act, if they are alleged to have been committed by a public servant. In view of our further finding that M.L.A. is not a public servant within the meaning of the expression in Sec. 21 IPC no sanction is necessary to prosecute him for the offences alleged to have been committed by him. In view of the conclusions reached by us, we consider it unnecessary to ascertain which would be the authority competent to sanction prosecution of M.L.A. as envisaged by Sec. 6 thought it must be frankly confessed that considerable time was spent in the deliberations in search of competent sanctioning authority. The vital question has become one of academic interest. We propose to adhere to the accumulated wisdom which has ripened into a settled practice of this Court not to decide academic questions. The question is left open. To sum up, the learned special Judge was clearly in error in holding that M.L.A. is a public servant within the meaning of the expression in Sec. 12(a) and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused. For the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set aside. This appeal accordingly succeeds and is allowed. The order and decision of the learned Special Judge Shri R.B. Sule dated. July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No.3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged. The accused was the Chief Minister of a premier State- the State of Maharashtra. By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud. Nearly 2/1/2 years have rolled by and the case has not moved an inch further. An expeditious trial is primarily in the interest of the accused and a mandate of Art. 21. Expeditious disposal of a criminal case is in the interest of both, the prosecution and the accused. Therefore, Special Case No. 24 of 1982 and Special Case. No 3/83 pending in the Court of Special Judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases Preferably by holding the trial from day to day. Appeal allowed Issues Involved1. Relevant date for a valid sanction u/s 6 of the Prevention of Corruption Act, 1947.2. Necessity of sanction from multiple authorities if the accused holds multiple public offices.3. Identification of the sanctioning authority for prosecution.4. Whether an MLA is a public servant u/s 21(12)(a) IPC.5. Whether an MLA is a public servant u/s 21(3) and 21(7) IPC.6. Necessity of sanction for prosecution of an MLA.7. Identification of the competent authority to remove an MLA.SummaryIssue (a): Relevant Date for a Valid SanctionThe court held that the relevant date for determining the necessity of a valid sanction u/s 6 of the 1947 Act is the date when the court is called upon to take cognizance of the offence. If the accused has ceased to be a public servant by that date, no sanction is required. This was affirmed by citing precedents like S.A. Venkataraman v. The State and C.R. Bansi v. State of Maharashtra.Issue (b) and (c): Necessity of Sanction from Multiple AuthoritiesThe court concluded that if the accused holds multiple offices, sanction is only required from the authority competent to remove him from the office alleged to have been abused. The court rejected the argument that sanction from each authority of every office held by the accused is necessary. The decision in Air Commodore Kailash Chand v. The State (S.P.E. Hyderabad) was distinguished, and it was clarified that the sanction must come from the authority related to the office alleged to have been misused.Issue (d): MLA as a Public Servant u/s 21(12)(a) IPCThe court held that an MLA is not a public servant u/s 21(12)(a) IPC. The historical evolution of Section 21 and the recommendations of the Santhanam Committee were considered, which did not include MLAs in the definition of 'public servant.' The court also emphasized that MLAs are not in the pay of the Government (executive) but receive their remuneration from the Legislature.Issue (e): MLA as a Public Servant u/s 21(3) and 21(7) IPCThe court found that MLAs do not fall within the purview of Section 21(3) or 21(7) IPC. Clause (3) pertains to persons discharging adjudicatory functions, which does not apply to MLAs. Clause (7) relates to persons empowered to place or keep any person in confinement, which also does not apply to MLAs.Issue (f) and (g): Necessity of Sanction for MLA and Identification of Sanctioning AuthorityGiven that an MLA is not a public servant within the meaning of Section 21 IPC, no sanction is necessary for prosecuting an MLA for offences alleged to have been committed. Consequently, the question of identifying the competent sanctioning authority becomes academic and was left open by the court.ConclusionThe court allowed the appeal, set aside the order of the Special Judge discharging the accused, and directed that the trial proceed further. The case was transferred to the High Court of Bombay for expeditious disposal. The court emphasized the importance of a speedy trial in the interest of justice for both the prosecution and the accused.