TaxTMI 
TaxTMI 
2011 (7) TMI 1374
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....ing tried for the offences under Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with Section 109 of Indian Penal Code in separate trials. 4. Separate charge sheets were filed against both the appellants for the aforementioned offences by the CBI. It was alleged that both the accused while working as the Members of Legislative Assembly had accumulated wealth disproportionate to their known sources of income. The charges were filed on the basis of the investigations conducted by the CBI. This was necessitated on account of this Court's order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to investigate the JBT Teachers Recruitment Scam. The offences were registered on 24.5.2004. The CBI conducted searches and seized incriminating documents which revealed that Shri Om Prakash Chautala and his family had acquired movable and immovable properties valued at Rs. 1,467 crores. On this basis a Notification came to be issued on 22.2.2006 under Sections 5 and 6 of the DSPE Act with the consent of the Government of Haryana extending powers and jurisdiction under the DSPE Act to the State of Haryana for investigation of allegations regarding accumulation o....
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....admittedly public servants and, therefore, under the plain language of Section 19 (1) of the Act, the Court could not have taken cognizance unless there was a sanction. The learned senior counsel analyzed the whole Section closely and urged that in the absence of a sanction, the cognizance of the offences under the Prevention of Corruption Act could not have been taken. In this behalf, learned senior counsel further urged that the judgment of this Court in Prakash Singh Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment in RS Nayak v. A R. Antulay [1984 (2) SCC 183] were not correct and required reconsideration and urged for a reference to a Larger Bench. 9. Against these two judgments as also the judgments in Balakrishnan Ravi Menon v. Union of India [2007 (1) SCC 45], K. Karunakaran v. State of Kerala [2007 (1) SCC 59] and Habibullah Khan v. State of Orissa & Anr. [1995 (2) SCC 437], this Court had clearly laid down the law and had held that where the public servant had abused the office which he held in the check period but had ceased to hold "that office" or was holding a different office then a sanction would not be necessary. The learned Solicitor Gen....
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.... (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 inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission 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." 10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on behalf of the appellants, firstly pointed out that the plain meaning of Section 19(1) of the Act is that when any public servant is tried for the offences under the Act, a sanction is a must. The learne....
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....t even in the judgments following the judgment in RS Nayak v. A R. Antulay (cited supra) upto the judgment in the case of Prakash Singh Badal v. State of Punjab (cited supra) and even thereafter, the learned Judges have not considered the plain meaning and on that count, those judgments also do not present correct law and require reconsideration. Another substantial challenge to the judgment in RS Nayak v. A R. Antulay (cited supra) is on account of the fact that the law declared to the above effect in RS Nayak v. A R. Antulay (cited supra) was obiter dictum, inasmuch as it was not necessary for the Court to decide the question, more particularly, decided by the Courts in paragraphs 23 to 26. The learned senior counsel pointed out that, firstly, the Court in RS Nayak v. A R. Antulay (cited supra), came to the conclusion that Shri Antulay who was a Member of the Legislative Assembly, was not a public servant. It is contended that once that finding was arrived at, there was no question of further deciding as to whether, the accused being a public servant in a different capacity, the law required that there had to be a sanction before the Court could take the cognizance. Learned senio....
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....f. 14. It will be, therefore, our task to see as to whether the judgment in A. R. Antulay's case (cited supra) and the law decided therein, particularly in paragraphs 24, 25 and 26 is obiter. Paragraphs 24, 25 and 26 are as under: "24. 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 in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to use. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration....
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....ash Chand : 1980CriLJ393 . 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 reemployment 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 Section 5(2) of the Prevention of Corruption Act, 1947 during the period March 29, 1965 to March 16, 1967. A contention was raised on behalf of the accused that the court could not take cognizance of the offence in the absence of a valid sanction of the authority competent to remove him from the office held by him as a public servant. The learned special Judge negatived the contention. In the revision petition filed by the accused in the High Court, the learned Single Judge held that on the date of taking cognizance of the....
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.... 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 Section 6. 26. Therefore, upon a true construction of Section 6, it is implicit therein that Sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him." 15. It is clear from these paragraphs that the law laid down in Air Commodore Kailash Chand v. The State (S.P.E. Hydera....
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....at the Court could not have gone further and recorded its finding in paragraphs 23 to 26 as they did. It is necessary firstly to note paragraph 15 which gives a clear cut idea as to what was the exact controversy therein and how the rival parties addressed Courts on various questions. Paragraph 15 is as under:- "15. The appellant, the original complainant, contends that the learned special Judge was in error in holding that M.L.A. is a public servant within the meaning of the expression under Section 21(12)(a). The second submission was that if the first question is answered in the affirmative, it would be necessary to examine whether a sanction as contemplated by Section 6 is necessary. If the answer to the second question is in the affirmative it. would be necessary to identify the sanctioning authority. The broad sweep of the argument was that the complainant in his complaint has alleged that the accused abused his office of Chief Minister and not his office, if any, as M.L.A. and therefore, even if on the date of taking cognizance of the offence the accused was M.L.A, nonetheless no sanction to prosecute him is necessary as envisaged by Section 6 of the 1947 Act. It wa....
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....ng himself to be a public servant is an identical question which fell for consideration before the High Court as also before us. In paragraph 17, the Court formulated the questions to be decided precisely on the basis of the contention raised by the accused in that case. Following were those questions : "(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 Section 6 of the 1947 Act? (b) If the accused holds plurality 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 public servant is charged? (c) Is it implicit in Section 6 of the 1947 Act that sanction of that competent authority alone is necessary, which is entitled to remove the public servant from the office which is alleged to have been abused for misused for corrupt motives? (d) Is M.....
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....ot being a public servant was decided as a subsidiary question. 21. This finding of ours is buttressed by the decision reported in Balakrishnan Ravi Menon v. Union of India (cited supra) which decision came almost immediately after Prakash Singh Badal v. State of Punjab (cited supra) case. Whether the finding given in the judgment of Antulay's case (cited supra) was obiter was the question that directly fell for consideration in that case. This Court quoted paragraph 24 of the judgment in Antulay's case (cited supra) so also some portion of paragraph 25. It is on the basis of these two paragraphs that the Court unequivocally rejected the contention that the finding given in Antulay's case (cited supra) regarding the abuse of office of Chief Minister was obiter. Therefore, it would not be possible for us to hold that the finding given in Antualy's case (cited supra) was an obiter. We must point out at this juncture that in Antulay's case (cited supra) the Court first went on to decide the basic question that if the accused did not continue with the office that he had allegedly abused on the day cognizance was taken, then there was no requirement of sanction. ....
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....s case (cited supra). That decision has stood the test of time for last over 25 years and it is trite that going as per the maxim stare decisis et non quieta movere, it would be better to stand by that decision and not to disturb what is settled. This rule of interpretation was approved of by Lord Coke who suggested - "those things which have been so often adjudged ought to rest in peace". This Court in Shanker Raju Vs. Union of India [2011 (2) SCC 132], confirmed this view while relying on the decision in Tiverton Estates Ltd. Vs. Wearwell Ltd. [1974 (1) WLR 176] and more particularly, the observations of Scarman, L.J., while not agreeing with the view of Lord Denning, M.R. about desirability of not accepting previous decisions. The observations are to the following effect:- "..... I decline to accept his lead only because I think it damaging to the law to the long term - though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty - one of the great objectives of law." The Court also referred to the fol....
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....of cognizance and, therefore, in ignoring this aspect, the decision in Antulay's case (cited supra) has suffered an illegality. Same is the argument in the present case. 26. This argument is basically incorrect. In Antulay's case (cited supra), it is not as if Section 6(2) of the Act as it then existed, was ignored or was not referred to, but the Constitution Bench had very specifically made a reference to and had interpreted Section 6 as a whole. Therefore, it cannot be said that the Constitution Bench had totally ignored the provisions of Section 6 and more particularly, Section 6(2). Once the Court had held that if the public servant had abused a particular office and was not holding that office on the date of taking cognizance, there would be no necessity to obtain sanction. It was obvious that it was not necessary for the Court to go up to Section 6(2) as in that case, there would be no question of doubt about the sanctioning authority. In our opinion also, Section 6(2) of the Act, which is parimateria to Section 19(2), does not contemplate a situation as is tried to be argued by the learned senior counsel. We do not agree with the proposition that the Act expressly....
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.... under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was- in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the of....
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....uch interpretation would amount to re-writing of Section 19(1) and as if a proviso would be added to Section 19(1) to the following effect:-   "Provided that nothing in this sub-Section shall apply to a case where at the time of cognizance, the public servant is holding a different post with a different removing authority from the one in which the offence is alleged to have been committed. Lastly, it was urged that such an interpretation would negate the very foundation of criminal law, which requires a strict interpretation in favour of the accused. Most of these questions are already answered, firstly, in Antulay's case (cited supra) and secondly, in Prakash Singh Badal v. State of Punjab (cited supra). Therefore, we need not dilate on them. We specifically reject these arguments on the basis of Antulay's case (cited supra) itself which has been relied upon in Prakash Singh Badal v. State of Punjab (cited supra). The argument regarding the addition of the proviso must also fall as the language of the suggested proviso contemplates a different "post" and not the "office", which are entirely different concepts. That is apart from the fact that the interpret....
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....on" in relation to the sanction connotes the time period of the present. Therefore, it was urged that since the two terms are not synonymous and convey different meanings in respect of time/status of the office, the term "public servant" should mean the "past office" while "person" should mean the "present status/present office". While we do agree that the different terms used in one provision would have to be given different meaning, we do not accept the argument that by accepting the interpretation of Section 19(1) in Antulay's case, the two terms referred to above get the same meaning. We also do not see how this argument helps the present accused. The term "public servant" is used in Section 19(1) as Sections 7, 10, 1 and 13 which are essentially the offences to be committed by public servants only. Section 15 is the attempt by a public servant to commit offence referred to in Section 13(1)(c) or 13(1)(d). Section 19(1) speaks about the cognizance of an offence committed by a public servant. It is not a cognizance of the public servant. The Court takes cognizance of the offence, and not the accused, meaning, the Court decides to consider the fact of somebody having committe....
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....n he is to be tried is not a public servant, then there will be no necessity of a sanction at all. Section 19(1) is very clear on that issue. We do not see how it will cause any hazardous situation. Similarly, it is tried to be argued that a Vice-Chancellor who is a public servant and is given a temporary assignment of checking the papers or conducting examination or being invigilator by virtue of which he is a public servant in an entirely different capacity as from that of a Professor or a Vice-Chancellor, commits an offence in the temporary capacity, then he would not be entitled to the protection and that will be causing violence to such public servant and, therefore, such could not have been the intention of the Legislature. We feel that the example is wholly irrelevant in the light of the clearest possible dictum in Antulay's case (cited supra) and in Prakash Singh Badal v. State of Punjab (cited supra). If the concerned person continues to be a Vice-Chancellor and if he has abused his office as Vice-Chancellor, there would be no doubt that his prosecution would require a sanction. So, it will be a question of examining as to whether such person has abused his position as....