2005 (11) TMI 502 - SC - Indian Laws

Summoning for prosecution u/s 13(2) of the Prevention of Corruption Act without proper sanction is illegal, SC rules.

Dilawar Singh Versus Parvinder Singh @ Iqbal Singh

The SC allowed the appeals, ruling that summoning the appellant for prosecution under Section 13(2) of the Prevention of Corruption Act, 1988, without ... Application u/s 482 CrPC for recall of the order - not served with the notice of the revision - ex parte against him - Challenged the summon order for facing prosecution u/s 13(2) of Prevention of Corruption Act, 1988 - HELD THAT:- The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence u/s 190, Cr.P.C. The observations made by this Court in Raghubans Dubey vs. State of Bihar [1967 (1) TMI 83 - SUPREME COURT] were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319, CrPC. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power u/s 319, Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person. Thus, we are of the opinion that the impugned order of the High Court directing summoning of the appellant- Dilawar Singh is wholly illegal and cannot be sustained. The appeals are accordingly allowed. The impugned order of the High Court is set aside and the order of the Special Judge, Barnala, is restored. Issues:1. Validity of summoning the appellant for prosecution under Section 13(2) of Prevention of Corruption Act, 1988 without proper sanction.2. Interpretation of Section 19 of the Act regarding the requirement of previous sanction for prosecution of a public servant.3. Application of Section 319 of the Criminal Procedure Code (Cr.P.C.) in summoning an accused without proper sanction.Issue 1: Validity of summoning the appellant for prosecution under Section 13(2) of Prevention of Corruption Act, 1988 without proper sanction.The case involved an appeal against the summoning of the appellant for prosecution under Section 13(2) of the Prevention of Corruption Act, 1988. The appellant contended that no sanction had been granted for his prosecution under Section 13(2) of the Act. The respondent argued that since cognizance had already been taken against another accused, no fresh sanction was required for the appellant. The Court analyzed the provisions of Section 19 of the Act and held that the sanction for prosecution must be granted with respect to a specific accused before the Court can take cognizance of the offence. The Court emphasized that the existence of a sanction is essential for proceeding against a public servant under the Act.Issue 2: Interpretation of Section 19 of the Act regarding the requirement of previous sanction for prosecution of a public servant.The Court examined the language of Section 19 of the Act, which mandates previous sanction for prosecution of public servants under specific sections of the Act. The section bars the Court from taking cognizance of offences without the requisite sanction from the competent authority. The Court clarified that the sanction must be granted for each accused individually before the Court can proceed with the prosecution. Citing precedents, the Court emphasized the importance of sanction in preventing unnecessary prosecutions against public servants and ensuring the proper discharge of official duties.Issue 3: Application of Section 319 of the Criminal Procedure Code (Cr.P.C.) in summoning an accused without proper sanction.The respondent argued that Section 319 of the Cr.P.C. empowered the Court to summon an accused based on evidence indicating their involvement in an offence. However, the Court held that in cases under the Prevention of Corruption Act, the provisions of Section 19 of the Act regarding sanction for prosecution override the general provisions of the Cr.P.C. The Court emphasized that the special nature of the Prevention of Corruption Act necessitates strict adherence to the requirement of sanction before summoning a public servant for prosecution. Therefore, the Court concluded that the summoning of the appellant without proper sanction was illegal and set aside the impugned order of the High Court.In conclusion, the Supreme Court allowed the appeals, holding that the summoning of the appellant for prosecution under Section 13(2) of the Prevention of Corruption Act, 1988 without proper sanction was illegal. The Court reiterated the importance of obtaining sanction for prosecution of public servants under the Act and clarified that the provisions of Section 19 regarding sanction override general provisions of the Cr.P.C. The impugned order of the High Court was set aside, and the order of the Special Judge was restored.