AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1984 (2) TMI 351
X X X X Extracts X X X X
X X X X Extracts X X X X
....s canvassed before this Court are mainly questions of law, facts at this stage having a peripheral relevance in the course of discussion, it is unnecessary to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas Shrinivas Nayak (complainant for short) in detail save and except few a pertinent and relevant allegations. In the process the brief history or the litigation may also be traced. The complainant moved the Governor cf Maharashtra by his application dated September 1, 1981 requesting him to grant sanction to prosecute the accused as required by Sec. 6 of the Prevention of Corruption Act, 1947 ('1947 Act' for short) for various offences alleged to have been committed by the accused and neatly set out in the application. Complainant then filed the first complaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay on September 11, 1981 being Criminal Case No. 76 Misc. of 1981 against the accused and others known and unknown collaborators alleging that the accused in his capacity as Chief Minister and thereby a public servant within the meaning of Sec. 21 of the Indian Penal Code (IPC) has committed offences under Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ief Metropolitan Magistrate was dismissed by a Division Bench of the High Court on April 12, 1982. Not the accused but the State of Maharashtra preferred an appeal by special leave under Art. 136 of the Constitution against the decision of the Division Bench of the High Court rejecting the special criminal application; This. Court rejected the application for special leave at the threshold on July 28, 1982. (See State of Maharashtra v. Ramdas Shrinivas Nayak and others) Promptly, on the heels of the judgment of this Court, the Governor of Maharashtra on the same day granted the sanction under Sec. 6 of the 1947 Act to prosecute the accused in respect of specific charges set out in the order according sanction. Armed with this sanction, the complainant filed a fresh complaint in the Court of the Special Judge, Bombay registered as Criminal Case No. 24 of 1982 against the accused as Accused No. 1 and others known and unknown. In this complaint it is broadly alleged that the accused who was the Chief Minister of the State of Maharashtra between the period August 1980 to September 1981 conceived scheme of aggrandisement involving obtaining of funds from the members of the public and pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion was moved on behalf of the accused inter alia contending that the Court of the learned special Judge had no jurisdiction in view of the provision contained in Sec. 7 of the Criminal Law Amendment Act, 1952 ('1952 Act' for short) and that no cognizance can be taken of offences punishable under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act on a private complaint. The case was at that time pending in the Court of the special Judge presided over by one Shri P.S. Bhutta. The learned special Judge by his order dated October 20, 1982 rejected both the contentions and set down the case for November 29, 1982 for recording evidence of the prosecution. The learned special Judge made it abundantly clear that under no circumstance the case would be adjourned on the next occasion and if any revision or appeal is intended to be filed against the order, the learned counsel for the accused should give advance notice to the learned counsel for the complainant. The accused filed Criminal Revision Application No. 510 of 1982 against the order of the learned special Judge dated October 20, 1982 rejecting his application. On January 16, 1983, the Government of Maharashtra issued a notific....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the accused that M.L.A was a public servant within the meaning of the expression in Sec. 21 (12) (a) IPC and that unless a sanction to prosecute him by the authority competent to remove him from his office as M.L.A. was obtained which in the opinion of the learned Special Judge. was Maharashtra Legislative Assembly the accused is entitled to be discharged. So saying, the learned Judge discharged the accused. The complainant filed a petition for special leave to appeal No. 1850 of 1983 and a Writ Petition (Crl.) No. 145 of 3983 against the decision. Of the learned special Judge. Both these matters came up before this Court on August 3, 1983 when the matters were adjourned to August 10, 1983 to enable the petitioner, original complainant to file a criminal revision application against the order of the learned special Judge in the High Court. Accordingly, the complainant filed Criminal Revision Application No. 354 of 1983 in the High Court against the order of learned special Judge Shri R.B. Sule. This Court ultimately granted special leave to appeal as also rule nisi in the writ petition. By an order made by this Court, the criminal revision application filed by the petitioner ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a common order in Special Case No. 3 of 1983 instituted upon the complaint of Mr. P.B. Samant, the accused was discharged. Sec. 21 IPC defines a 'Public Servant'. The relevant clauses may be extracted as under: "21. The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely:- Third-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions. Seventh: Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement Twelfth-Every person- (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or Pay of a local authority, a corporation establishes by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956. Explanation 1: Persons falling under any of the above descriptions are pub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Central or State 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". With a view to eradicating the evil of bribery and corruption, the Government of India set up a Committee to make recommendations for the improvement of the laws relating to bribery and corruption under the Chairmanship of Dr. Bakshi Tek Chand. The recommendations of the Committee led to the enactment of the Criminal Law Amendment Act, 1952 By the 1952 Act, power was conferred on the State Government to appoint special offences as may be necessary for such area or areas as may be specified in the notification to try the following offences namely; offences punishable under Sections 161, 162, 163, 164, 165 and 165A IPC and Sec. 5 of the 1947 Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences hereinabove mentioned; See. 7 conferred exclusive jurisd....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e status of a public servant and even if it is alleged that he has abused or misused one office as a public servant notwithstanding, the fact that there no allegation of abuse or misuse of other office held as public servant, sanction of each authority competent to remove him from each of the offices would be a sine qua non under Sec. 6 before a valid prosecution can be launched against the accused. On these rival contentions some vitat and some not so vital points arise for consideration, some easy of answer and some none-tooeasy. For their scientific and logical treatment they may be formulated. (a) What is the relevant date with reference to which a valid sanction is a pre-requisite for the prosecution of a public servant for offences enumerated in Sec. 6 of the 1947 Act? (b) If the accused holds plurally of offices occupying each of which makes him a public servant, is sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him necessary and if anyone of the competent authorities fails or declines to grant sanction, is the Court precluded or prohibited from taking cognizance of the offence with which the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... bars the court from taking cognizance of the offences therein enumerated allegel to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. Sec. 8 of 1952 Act prescribes procedure and powers of special Judge empowered to try offences set out in Sec. 6 of 1947 Act. Construction of Sec. 8 has been a subject of vigorous debate in the cognate appeal. In this appeal we will proceed on the assumption that a special Judge can take cognizance of offences he is competent to try on a private complaint. Sec. 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clause (a), (b) & (c) of sub-Sec. (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Sec. 6 and similar sections, is that there should not be unnecessary harassment of public servant. (Sec C.R. Bansi v. State of Maharashtra(1)). Existence thus of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offence....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of s. 6 can apply. In the present appeals, admittedly, the appellants had cease to be public servants alleged to have been committed by them as public servants. Accordingly, the provisions of s.6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority". And this view has been consistently followed in C.R. Bansi's case and K.S. Dharmadatan v. Central Government & Ors.(1) It therefore appears well-settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant required by Sec. 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. The accused tendered resignation of his office as Chief Minister and ceased to hold the office of Chief Minister with effect from January 20, 1982. The comp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he was holding that office at the time he is alleged to have committed the offences set out in the complaint filed against him. He tendered his resignation of the office of the Chief Minister and ceased to hold that office with effect from January 20, 1982. However, he continued to retain his seat as M.L.A. The contention is that as M.L.A., he was a public servant, a submission seriously controverted, which we would presently examine and that he was such public servant even on the date on which the court took cognizance of the offences set out in the complaint without a valid sanction and therefore the court had no jurisdiction to take cognizance of the offences. In support of the submission it was urged that if the policy underlying Sec. 6 and similar provisions like Sec. 197 Cr. P.C. was to spare the harassment to the public servant consequent upon launching of frivolous or speculative prosecutions, the same would be defeated if it is held that the sanction to prosecute is necessary from an authority competent to remove the public servant from the office which he is alleged to have misused or abused. Proceeding along this line it was urged that even if the accused has ceased to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd Sec. 6 requires a sanction before taking cognizance of offences committed by public servant. The offence could be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than local remuneration for doing or forbearing to do an official act (Sec. 161 IPC) or as a public servant abets offences punishable under Secs. 161 and 163 (Sec. 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Sec. 165 IPC) or commits criminal misconduct as defined in Sec. 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him public servant. The expression `offices' in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office hold by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office. Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....voided. Legislation must at all costs be interpreted in such a way that it would not operate as a rougue's charter. (See Davis & Sons Ltd. v. Atkins) Support was sought to be drawn for the submission from the decision of the Andhra Pradesh High Court in Air Commodore Kailash Chand v. The State (S.P.E. Hyderabad)(2) and the affirmance of that decision by this Court in The State (S.P.E. Hyderabad) v. Air Commodore Kailash Chand.(3) In that case accused Kailash Chand was a member of the Indian Air Force having entered the service on 17th November 1941. He retired from the service on 15th June, 1965, but was re-employed for a period of 2 years with effect from 16th June, 1965. On 7th September, 1966, the respondent was transferred to the Regular Air Force Reserve with effect from June 16, 1965 to June 15, 1970 i.e. for a period of 5 years. On 13th March, 1968, the re-employment given to the respondent ceased and his service was terminated with effect from April 1, 1968. A charge-sheet was submitted against him for having committed an offence under Sec. 5(2) of the Prevention of Corruption Act, 1947 during the period March 29, 1965 to March 16, 1967. A contention was raised on behal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t case was the same from which his service was terminated meaning thereby he was re-employed to the same office. The decision appears to proceed on the facts of the case. We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of Sec. 6. Therefore, upon a true construction of Sec. 6, it is implicit therein that sanction of that competent autho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of cl. (12)(a) according to the learned special Judge are: (i) Every person in the service of the Government; or (ii) Every person in the pay of the Government; or (iii) Every person remunerated by fees or commission for the performance of any public duty by the Government. If any person falls in any of the three limbs according to the learned special Judge, he would be a public servant within the meaning of the expression in Sec. 21. IPC. It was conceded before the learned special Judge and not retracted before us that the case of the accused does not fall in the first limb i.e. the accused as M.L.A. could not be said to be in the service of the Government. The contention is that the accused while receiving his salary as M.L.A. under the Maharashtra Legislature Members' Salaries and Allowances Act, 1956 was and is in the pay of the Government. The second limb of the submission was that even if the pay which the accused received as M.L.A. under the relevant Act would not make the accused a person in the pay of the Government, nevertheless the pay received by him would be the remuneration which the accused....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce to say that M.L.A. does not perform any public duty. His duty may be political or moral as urged on behalf of the complainant but it is nonetheless a constitutional duty which he is performing and that duty would be comprehended in the expression `public duty' in cl. (12) (a). As a corollary it was submitted that the remuneration in the form of pay which the accused receives and has been receiving since he ceased to be the Chief Minister under the relevant Act is remuneration for the performance of the public duty by the Government. The neat question that emerges on the rival contentions is one of construction of the expression `in the pay of' and the expression `Government' in cl. (12) (a). At the threshold learned counsel for the accused sounded a note of caution that the Court should steer clear of the impermissible attempt of the appellant to arrive at a true meaning of legislative provision by delving deep into the hoary past and tracing the historical evolution of the provision awaiting construction. It was submitted with emphasis that this suggested external aid to construction falls in the exclusionary rule and cannot be availed of. Therefore, it has beco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ambiguous. The trend certainly seems to be in the reverse gear in that in order to ascertain the true meaning of ambiguous words in a statute, reference to the reports and recommendations of the Commission or Committee which preceded the enactment of the statute are held legitimate external aids to construction. The modern approach has to considerable extent roded the exclusionary rule even in England. Constitution Bench of this Court after specifically referring to Assam Railways and Trading Co. Ltd. v. I.R.C. in State of Mysore v. R.V. Bidap(4) observed as under: "The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being exercise in the ascertainment of meaning, every thing which is logically relevant should be admissible.There is a strong case for whittling. down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity-it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions. As to the statutory objective of these a report. leading to the Act is likely to be the most potent aid and, in my judgment, it would be more obscurantism not to avail oneself of it. here is, indeed clear and high authority that it is available for this purpose". And in support of this statement of law, a number of cases were relied upon by the learned Law Lord. It may also be mentioned that Per Curiam it was held that "where there is an ambiguity in a statute, the court may have regard to the Report of a Committee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute, in order to determine the mischief which the statute was intended to remedy". Though the unanimous view was that the report of a committee presented to Parliament preceding the statute could be seen for finding out the then state ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....actment of legislation, and the object sought to be achieved, be denied to court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation. Such denial would deprive the court of a substantial and illuminating the to construction. Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of Joint Parliamentary Committee, report of a commission set up for collecting. information leading to the enactment are permissible external aids to construction. In this connection, it would be advantageous to refer to a passage from Crawford on Statutory Construction (page 388). It reads as under: "The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading upto an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt but they hold definitely that the legi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udicated by what in the language of the courts is called contemporanea expositio, that is, by seeing how they were understood at the time when they were passed, Undoubtedly, this doctrine cannot be applied to modern statutes or indeed to any statute whose meaning appears to the court to be plain and unambiguous. At any rate, one can justifiably say that M.L.A. could not be comprehended in any of the clauses of Sec. 21 to be a public servant when the Indian Penal Code was enacted in 1860. The next stage in the historical evolution of the law with regard to corrupt actions of members of public bodies is the one to be found in a Bill introduced in 1925 called Legislative Bodies Corrupt Practices Act, 1925. This Bill was introduced to give effect to the recommendations of the Reforms Enquiry Committee known as Mudiman Committee. In the book 'Evolution of Parliamentary Privileges' by Shri S.K. Nag, the author traced the steps which led to the introduction of the Bill. In the statement of objects and reasons accompanying the Bill, it was stated that the corrupt influencing of votes of members of the legislature by bribery, intimidation and like should be made penal offences un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ody's case that M.L.A. is covered in cl. 12 (b). The next stage of development ma/ now be noticed. While participating in the debate on the demand. for grants for the Ministry of Home affairs in June 1962, some members of the Lok Sabha specifically referred to the growing menace of corruption in administration. In reply to the debate, the then Home Minister suggested that some Members of Parliament and if possible some other public men do sit with the officers in order to review the problem of corruption and make suggestions. Pursuant to this announcement, a Committee chaired by Shri K.Santhanam, M.P. was appointed with nine specific terms of reference which inter alia included: "to suggest changes which would ensure speedy trial of cases of bribery, corruption and criminal misconduct and make the law otherwise more effective'. This Committee submitted its report on March 31 1964. While examining the fourth term of reference extracted hereinabove, the Committee in Section 7 of its report considered the question of proposed amendment to Indian Penal Code. The Committee focussed its attention on the definition of 'public servant' in Sec. 21. Paragraph 7.6 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eceive, property of the Government, keep, or expend any property or to make any survey, on behalf of the Government, assessment, or contract on or to make any survey, as- behalf of the Government or to sessment or contract on be- execute any revenue-process, half of the Government or to or to report, on any matter affecting the pecuniary interest of execute any revenue-process, the Government or to make or to investigate, or to authenticate or keep any docu- report, on any matter affec- ment relating to the pecuniary ting the pecuniary interest interest of the Government, of the Government or make or to prevent he infraction of authenticate or keep any any law for the protection of document relating to the of the pecuniary interests of pecuniary interests of the the Government, and every Government, or to prevent officer in the service or pay the infraction of any law of the Government or remunerat- for the protection of the ed by fees or commission for pecuniary interest of the performance of any public Government duty. (Underlining ours); Twelfth: Every officer in the Twelfth: Every person: service or pay of a local auth- (a) in the service or pay of ority....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e inquired into by the Committee of privileges, and if a breach is established, action including termination of membership may be taken. Necessary snactions for enforcing the Code of Conduct should also be brought into existence". The Government minutely examined the Report. The recommendations of the Committee which were accepted by the Government led to the introducing of The Anti-Corruption Laws (Amendment) Bill 1964 (Bill No. 67 of 1964) in the Parliament. The salient features of the Bill worth-noticing are that cl. (3) of Sec. 21 was proposed to be amended as recommended with minor structural change. Cl. (9) of Sec 21 was dissected as recommended and its last part 'and every officer in the service are pay of the Government or remunerated by fees or commission for the performance of any public duty' was detached and re-enacted as cl. (12) (a) and the original cl. (12) was renumbered as Cl. (12) (b) with slight modification. This would imply that no attempt was made to bring in M.L.A. within the conspectus of clause in Sec. so as to make him public servant. The position of the Minister was slightly fluid but a clear picture emerged during the debate on the Bill in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a). If M.L.A. was not comprehended in clause 9 before its amendment and dissection, it would make no difference in the meaning of law if a portion of cl. 7 is re-enacted as cl. 12 (a). It must follow as a necessary corollary that the amendment of Cls. (9) and (12) by Amending Act 40 of 1964 did not bring about any change in the interpretation of cl. (9) and cl. (12)(a) after the amendment of 1964. In this connection, it would be advantageous to refer to G.A. Monterio v. The State of Ajmer(1) followed and approved in The State of Ajmer v. Shiji Lal(2) in both of which cl. (9) as it stood prior to its amendment came up for construction. In the first mentioned case, the accused was a chaser in the Railway Carriage Workshop at Ajmer. He was held to be an officer in the pay of the Government, comprehended in the last part of cl. (9) of Sec. 21 as it then stood. In the second case, accused was a teacher in a railway school at Phulera. His contention had found favour with the learned Judicial Commissioner but in reaching the conclusion, he appeared to have ignored the last part of cl.(9) prior to its amendment in 1964. In the appeal by the State, this Court held that the case of the accus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in particular the addition of the words 'by the Government' in sub-cl.(a) of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration, After extraction these reasons which appealed to the High Court, this Court observed than the reasoning of the High Court does not suffer fro many infirmity. It would transpire that payment by the Government was implied without the use of the expression, by the Government in cl. 9. The words 'by the Government' are added in cl. (12)(a) amended. This apparently does not make any difference. It would therefore necessarily follow that the amendment of cls (9) and (12) did not bring about any change in the coverage and construction of the two clauses prior to and since their amendment. If that be so, it would follow as necessary corollary that if M.L.A. was not a public servant with in the meaning of the expression prior to Act 40 of 1964, since the Act, the law, legal effect and on average of expression public servant remains unaltered and hence, M.L.A. is not a 'public servant' comprehended in cl. (12)(a). Thus looking to the history and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent, it was countered asserting that the concept of master servant relationship or command-obedience relationship is comprehended in the first part of cl. (12) (a) which provides that every person in the service of the Government would be a public servant. It was urged that if even for being comprehended in the second part of the clause namely, a person would be a public servant if he is in the pay of the Government, their ought to be a master-servant or command-obedience relationship, the Legislature would be guilty of tautology and the disjunctive 'or' would lose all significance. The use of the expression 'or ' in the context in which it is found in cl. (12)(a) does appear to be a disjunctive. Read in this manner, there are three independent categories comprehended in cl. (12) (a) and if a person falls in any one of them, he would be a public servant. The three categories are as held by the learned special Judge; (i) a person in the service of the Government; (ii) a person in the pay of the Government; and (iii) a person remunerated by fees or commission for the performance of any public duty the Government. One can be in the service of the Governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case of members of the Legislative Assembly of the corresponding Province.' Armed with this power, the Maharashtra State Legislative Assembly has enacted 'The Maharashtra Legislature Members' Salaries and Allowances Act, 1956 (Bombay Act XLIX of 1956)'. Sec. 3 (1) provides that 'there shall be paid to each member during the whole of his term of office a salary at the rate of Rs. 450/-per month and sub-sec. (2) provides that 'there shall be paid to each Member during the whole of his term of office per month a sum of Rs. 400/- as a consolidated allowance for all matters not specifically provided or by under the provision of the Act'. Sec. 4 provides for daily allowances to be paid to Members. Sec. 5 provides for travelling allowance to be paid to Members. Sec. 5AC provides for a free travel by railway and steamer by a Member subject to the conditions therein prescribed. Members are also eligible for some allowances as specified in various sections of the Act. The Maharashtra Legislature Members Pensions Act, 1976 makes provision for payment of pension with effect from April 1, 1981 at the rate of Rs. 300 per month to every person who has served as a Memb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....are after all used merely as a vehicle to convey the idea of the speaker or the writer and the words have naturally, therefore, to be so construed as to fit in with the idea which emerges on a consideration of the entire context. Each word is but a symbol which may stand for one or a number of objects. The context, in which a word conveying different shades of meanings is used, is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author". In State Bank of India v. N. Sundara Money, Krishna Iyer, J. speaking for the Court observed in his inimitable style that 'dictionaries are not dictators of statutory construction where the benignant mood of a law, may furnish a different denotation'. With this caution, we may briefly refer to the meaning of the expression 'pay' and 'in the pay of' given by different dictionaries. As far as the expression 'pay' is concerned, a Constitution Bench of this Court in Karunanidhi's case referred to various dictionaries and concluded that the word ordinarily means 'salary, compensation, wages or any amount of money paid to the person who is describ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The setting and the context are very relevant for ascertaining the true meaning of the expression. In order to avoid the charge of tautology, the phrase 'in the pay of the Government' in cl. (12) (a) may comprehend a situation that the person may be in the pay of the Government without being in the employment of the Government or without there being a master-servant relationship between the person receiving the pay and the Government as payer. It was however, contended that the question whether a person 'in the pay of the Government' is ipso facto a public servant is no more res integra and concluded by the decision of the Constitution Bench in Karunanidhi's case? In that case before adverting to the dictionary meaning of the expression 'pay', the Constitution Bench speaking through Fazal Ali, J. observed as under at page 282: "We are of the opinion that so far as the second limb 'in the pay of the Governments' is concerned, that appears to be of "We are of the opinion that so far as the second limb 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude so as to include within its ambit even ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....That the said salary is paid to the Chief Minister or the Minister from the Government funds". It would appear at glance that no argument was advanced and none has been examined by the Constitution Bench bearing on the interpretation of the expression 'Government' in cl. (12)(a). It was assumed that salary and allowances paid to the Chief Minister are by Government. What does expression 'Government' in the clause connote was not even examined. And it is on the aforementioned finding that the Chief Minister was held to be a public servant but that does not conclude the matter. This is not the end of the matter. The question may be posed thus: 'Even if M.L.A. receives salary and allowances under the relevant statute, is he in the pay of the Government'? In other words, what does the expression 'Government' connote? There is a short and a long answer to the problem. Sec. 17 IPC provides that 'the word Government' denotes the Central Government or the Government of a State'. Sec. 7 IPC provides that 'ever expression which is explained in any part of the Code, is used in every part of the Code in conformity with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y consisting, as it does, of the members of the legislature is, like, the British Cabinet 'a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part". In Shamsher Singh & Anr. v. State of Punjab, a seven Judges Bench unanimously overruled the decision in Sardari Lal v. Union of India and Ors. and held that 'our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British Model both for the Union and the States'. This view has not been departed from. Now in parliamentary form of Government modelled on British model, the executive, legislature and judicial powers are in the main entrusted to separate instruments of the State. It is not for a moment suggested that there is strict or water-fight division of powers, but the functions are certainly divided. In Halsbury's Laws of England, Fourth Edition, Vol. 8 para 813, separation of executive, legislative and judicial powers in the Westminster Model have been adverted to. It reads as under: "It is clear that the powers of government are divided. The executive, legislative and judicial powers are in the mai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pointed by the House. This Commission is charged with a duty to determine the number and remuneration and other terms and conditions of service. This Commission is also responsible for laying before the House an estimate of the expenses of the House departments and of any other expenses incurred for the service of the House of Commons. (ibid para 1155). Let us turn to relevant provisions of the Constitution. Part VI of the Constitution provides that 'the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.' Chapter III in Part VI provides for State Legislature. Every State is to have a Legislature which shall consist of the Governor and it can be unicameral or bicameral as the case may be Where the State has a unicameral legislature, the assembly is called Legislative Assembly. Art. 170 provides for members of the Legislative Assembly being chosen by direct election from territorial constituencies in the State. Arts. 178 to 186 provide for officers of the State Legislatures such as the Speaker and Deputy Speaker of the Legislative Assembly and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... item. There thus is a broad division of functions such as executive, legislative and judicial in our Constitution. The Legislature lays down the broad policy and has the power of purse. The executive executes the policy and spends from the Consolidated Fund of the State what Legislature has sanctioned. The Legislative Assembly enacted the Act enabling to pay to its members salary and allowances. And the members vote the grant and pay themselves. In this background even if there is an officer to disburse this payment or that a pay bill has to be drawn up are not such factors being decisive of the matter. That is merely a mode of payment, but the M.L.As. by a vote retained the fund earmarked for purposes of disbursal for pay and allowances payable to them under the relevant statute. Therefore, even though M.L.A. receives pay and allowances, he is not in the pay of the State Government because Legislature of a State cannot be comprehended in the expression 'State Government'. This becomes further clear from the provision contained in Art. 12 of the Constitution which provides that 'for purposes of Part III, unless the context otherwise requires, "the State" includes....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ber; (a) to secure the acquisition by the Government of the State of New South Wales of certain estates and the payment for such estates out of the public funds of the State; and (b) to put pressure upon the Minister for Lands and other officers of the Crown to acquire and pay for such estates. The contention was that the agreement between the defendants might have been to pay money to Boston to induce him to use his position exclusively outside Parliament, and not by vote or speech in the Assembly, and that the transaction in connection with which he was to use his position to put pressure on the Minister might consistently with the information, be one which would never come before Parliament and which, in his opinion and in the opinion of those who paid him, was highly beneficial to the State; that such an agreement would not amount to a criminal offence, and that consequently the information is bad. Negativing this contention, it was held that it is settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy. It was further held by the majority that the payment of money to, and the receipt of money by, a mem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ning of the common law and even if he could be regarded as the holder of such an office, the acts charged as intended to be done by the defendant Boston, however improper they may be, would not be malversation in his office or acts done in his office or acts done in his office unless they were done in the discharge of his legislative functions. As we are concerned with a legislative enactment- Sec. 21(12)(a), this decision based on the concept of common law and some of the statutes as prevailing in Australia would not be very helpful. It may be mentioned while comparing M.L.A. and M.P. in India with M.P. in U.K. that the M.P. in U.K. is neither covered by the Prevention of Corruption Act, 1906 nor the Prevention of Corruption Act, 1916. It may also be mentioned that The Public Bodies Corrupt Practices Act, 1889 does not cover M.P. in U.K. 'The acceptance by any member of either House of Parliament of a bribe to influence him in his conduct as such member or of any fees, compensation or reward in connection with the promotion of, or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to the House or any committee thereof is a breach of privi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd in view, the Committee recommended that cl. (3) should read: 'Every Judge including any person entrusted with adjudicatory functions in the course of enforcement of any law for the time being in force'. At the Bill stage, the clause was recast so as to give full effect to the recommendation of the Committee and this equally becomes clear from the Statement of objects and Reasons accompanying Bill No. 67 of 1964 which when adopted became Act 40 of 1964. In para 2 (a) of the Statement of objects and Reasons it is stated that 'the definition of public servant in Sec. 21 of the Indian Penal Code is proposed to be amended so as to bring within its purview certain additional categories of persons such as persons performing adjudicatory functions under any law, liquidators, receivers, commissioners etc.' If we recall the earlier discussion about the history of evolution of cl, (12) (a) and the entire range of recommendation of the Santhanem Committee, it can be confidently said the M.L.A. was never intended to be brought within the conspectus of clauses of Sec. 21 so as to clothe him with the status of a public servant. Independent of this historical evolution and fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e terms ordinarily connote. A motion for breach of privilege or for contempt of the House is brought before the House when the mover feels that the powers, privileges and immunities of the House have been violated. The House has the power to punish for contempt' and the penal jurisdiction of the House is not confined to their own Members nor to offences committed in their presence, but extends to all contempts of the Houses, whether committed by Members or by persons who are not Members, irrespective of whether the offence is committed within the House or beyond its walls'. (See Earskine May Parliamentary Practice 20 ed. p. 122). This power of commitment is truly described as a key-stone of Parliamentary Practice. It was pointed out that 'the origin of the power which is judicial in its nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice-the High Court of Parliament' (ibid page 124). It is however, difficult to say that a State Legislature functioning under our Constitution can be described as High Court of Legislative Assembly. In blindly tailoring our Constitutional Law to the Parliamentary Practice in U.K., one....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ansfers the power to amend the Constitution from the residuary entry or Article 248 of the Constitution to Article 368 is valid. After so saying the trend of discussion in various judgments in H.H. Keshvnand Bharathi Sripadanaga galavaru v. State of Kerala and another(2) shows that when the power amend the Constitution is exercise by Parliament it exercises Constituent power and this is independent of the ordinary legislative process. And this approach is borne out by a reference to the definition of expression Indian law in the General Clauses Act which does not include the Constitution. A passing reference may also be made to the form of oath prescribed for a Judge of the Supreme Court and the Judge of the High Court in the Third Schedule which separately refer to the Constitution and the laws. Participation in a debate on a motion of breach of privilege or for taking action for contempt of the House and voting thereon is a constitutional function discharged by the members and therefore, it cannot be said that such adjudicatory function if it can be so styled, constitutes adjudicatory function undertaken by M.L.A. as empowered by law. Viewed from this angle it is not necessary....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rce its orders including the power for its officers to break open the doors of a house for that purpose, when necessary, and execute its warrants in connection with contempt proceedings'. We fail to see how these observations assist us in understanding the expression 'empowered to place or keep any person in confinement.' Broadly stated, the expression comprehends Police and Prison Authorities or those under an obligation by law or by virtue of office to take into custody and keep in confinement any person. In M P. Dwivedi's case, this Court observed that Seventh and Eighth clauses of Sec. 21 deal with persons who perform mainly policing duties. To say that M.L.A. by virtue of his office is performing policing or prison officers' duties would be apart form doing violence to language lowering him in status. Additionally, cl. (7) does not speak of any adjudicatory function. It appears to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison sentence, and a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 rip....