R. S. Nayak v. A.r. Antulay

495,

R.S, NAYAK” ARS ANTULAY Febru, 16, 1984 - p. ‘A. Desat, R. S. PATHAK, 0. CHINNAPPA Reppy, ’ A. P. SEN AND V. BALAKRISHNA ERADI, mY

, Prevention of Corruption Act, 1947S. x - Interpretation of. Whether court can take cognizance of offences enumerated ins. 6 against public servant without sauction of competent authority—Which is competent -authority to give sanction—

What is relevant date on which sanction be there~-For. ‘attracting s.6 accused should. .

he a public servant both on date of offence and on date when court, takes cognizance of offence, In cases where accused holds several offices each one of. which makes him public servant— Whether sanction of competent authorities of all the offices necessary or whether: sanction of that competent authority alone under which public servant has misused Ais office is sufficient.

indian Penal Code~s.21, clauses (3), (7) and (12) (a)—Defenition' of ‘public _

| Gservant *—Scope of— Whether Member of State Legislative Assembly a ‘public ser- . vant’. Express ons ‘or , ‘pay’, in the pay of, and "Government, used in 3. 21 explained.

&

Construction of Statutes—Rule of—Construct on “must advanice object of Act— Court must give effect t¢ natural meaning of words—In case of ambiguity court must. ‘ascertain. intenation of legislature behind Act—Court can take help of external aids—~ - While constructing ancient statute court can.look at surrounding circumstances when statute was endeted, '

Words and Phrases— Word § ‘or “and ‘pay, meaning 8. of, Phrase ‘in the pay of,-— - Explained. . ote

- The. appellant, R.S. Nayak, filed’ a “complaint against the respondent, A, R. :

Antulay, & public servant being the Chief Minister of Maharashtra State, under ss. 161, 165 I.P.C. and s. S’of the Prevention ‘of Corruption Act, 1947 (1947 Act)

alleging abuse of office of Chief Minister. The complaint was rejected on account.

of absence of necessary sanction of the Governor of Maharashtra State under s. 6 of the 1947 Act to prosecute the respondent. Aftet the Governor issued necessary sanction, the appellant filed a fresh complaint in the Court of .Special Judge against

_the, respondent’ on the same grounds. However, ‘on the date of. filing fresh com- .

plaint the, respondent had already resigned as Chief Minister. The respondent contended that the Special Judge had no jurisdiction to try him under s. 7 of the Criminal Law Amendment Act, 1952 and that no cognizance could be taken on’ private complaint. The Special Judge rejected both the contentions. In the meantime the ~~

State Government issued ‘a notification under s, 7(2) of the Criminal Law Amend- ment Act, 1752 under which the’ case was transferred to another Special Judge. In . a criminal revision . application filed by the repsondent against the order of earlier’

, 496 ° vos _ SUPREME COURT REPORTS . [1984] 2 s.c.R.

; Special Judge, a Division Bench of the High Court held that the Soecail ‘Judge had jurisdiction to try the respondent and that the private complaint was maintainable. . When the latter Spepial Judge’ proceeded with the case the respondent filed an appli- “cation for his discharge on the grounds that the charge against him was baseless “and that he being'a Member of Legislative “Assembly (M.L.A) requisite sanction. _ under s. 6 of thg 1947 Act was necessary. The Special Judge discharged the respondent holding that the respondent being MLA was a public servant within s, 21 (t2)(a) of ILP.C:. and in the absence of the sanction of the Legislative. Assembly

. ‘he could not take cognizance of offeince: The Special Judge also held that the mate- rial date for deciding the applicability. of s. 6 of the 1947 Act was the date on which thé Court was asked to take cognizance of the offence, The. appellant challenged the order of the Special Judge in this Appeal. ,

The questions which arose for consideration were— (a) What i is- the relevait date with reference to which a valid sanction is a + '®& pre-requisite for the prosecution of a public servant for offences enu- _ mérated in s. 6 of the 1947 Act ?

(>) If the accused holds several 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 froni taking cognizance. ' of the offence with which the public servant is charged, or.is it implicit in s. 6 of the 1947 Act that sanction of that ‘competent authority alofe " is necessary which is entitled to remove the public servant from the office - which is is alleged to have been abused. or misused for corrupt motives ? (c) Ts M.LL.A. a ‘public. servant within the meaning of the expression in clauses ; 12(@), 3 and Tofs. 2t EP.C. ?

(d) Is sanction as contemplated by s. 6 of the 1947 Act necessary ‘for prosecution of M.L.A. and if so, which is the sanctioning authority competent to remove MLL. A. from the office of Member of the Legislative Assembly ?

Allowing the-appeal.

HELD; The provisons of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act andvat any rate not defeat it. If the words of the statufe arc clear and unambiguous, it is is the plainest duty, of the court to give effect to the natural meaning.of the words, “used in the provisions. In the event ‘of an ambiguity of the plain meaning ‘of the . words used in the statute being sclf- defeating, the court is entitled to sascertain the - intention of the legislature to remove the ambiguity by construing the provision of .the,statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute.’ Wheneever a

- . “ef om em, rf

Pant

=e question of construction arises upon ambiguity or where two views are possible of , of a provision, it would be the duty of the court to adopt that construction which would ‘advance the object underlying the Act. [512 A—C]

The basic purpose underlying all canons 5 of ‘constraction is the ascertainment

. :

¢ te

R. 8S. NAYAK V. A. R.. ANTULAY 7” _ 497 with reasonable certainty of the intention of Parliament in enacting the legislation. - For this purpose why should the aids which, Parliament availed of such as report of a special committee precedingggipe enactment, existing state of law, the environment necessitating: “enactment of legislation, and the object. sought to be achieved, be denied to court whose function is primarily to give. effect to the real intetion of

- the Parliament in enacting the legislation. Such denial would deprive the court’

of a substantial and illuminating aid to construction. Therefore, departing from’ the’ earlier English decisions, the reports of the committee which preceded the enactment of @ 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. [527A; D—E] . x In construing 4 statute more especially the ancient statute, the court may look at the surrounding circumstances when thé statute was enacted. “The «construction of ancient statutes may be eludicated 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. [528F—G]

"Standard dictionaries as a rule give in respect of each word as many meanings in which the word has either been used or it. is likely to be used in different contexts and connections, While it may be permissible to refer to dictionaries to find - out the meaning in which a word is capable of being used or understood in-common parlance, the well-known tannon-of construction should not even for a minute be overloohed that the méaning to the words and expressions used in a statute ordinarily take their colour from the context in which they appear. [539F—G]

#

Deputy Chief Controller of Imports & Exports New Delh vy. K.T, Kosalram & .

Ors., [1971] 2S.C.R. 507 at S17; and ‘State Bank of India, v. IN. Sundara Money,

[1976] 3 S.C_R. 160, referred to.

- -Saction 6 of the Prevention of Corruption Act, 1947 bars the courts from taking

‘cognizance of the offences therein enumerated alleged to have bcen committed: by a public servant except ‘with the previous sanction of the competent authority empowered to grant the requisite.sanction. Therefore, when the court is called upon ° to take cognizance of such offences, it must enquire whether there is a valid san- ction to prosecute the public-servant for the offence alleged to have been commit- ”

ted by htm as public ‘servant. Undoubtedly the accused must be'a public servant

-when he is alleged to have committed the offence of which he is accused because ss. 161, 164, 165 I-P.C. and s. 5(2) of the 1947 Act clearly spell out that the offences there in defined can be committed by a public servant, A trial without a valid sanction where one is necessa cy under s.6 would be a trial without jurisdiction by the court, It is well settled that the relevant date with reference to which a valid sanction is sine gua ron for taking cognizance of an offence- committed by a public servarit as required by s.6 is the date when the court is called upon to take cognizance of the offence of which he is accused. If, therefore, when the. offence is alleged to

. have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the-offence committed by him‘as public servant, he has ceased to be a public servant, s. 6 will not be attracted and no sanction would be necessary for tahing cognizance of the offence against him. This approach i is in, accord with the policy underlying s.€ in that a public servant is not to be exposed to harassment of a frivolcus or speculative presecuticn. If he has ceased to be a public ted in his’ for mer capacity as public servant. [514D—E]

- 498 ose a COURT REPORTS oo [1984] 2 s.cur.

._ servant in the: meantime, this vital’ consideration ceases to éxist. (S120; H; 513 AE]. . ae .- .

CR. Bansi y, State of Maharashira, font] 34S.C.R. 236; RR. Chari y. State of U.P., [1963] 1 $.C.R. 121;'S.N. Bose'v. Stale of Bhar, (1968]+3 SCR. 561;

Mohd. Iqbal Ahmed y. State of “A.P., [1979] 2 S.C.R. 1007; S.A. Venkataraman vy.” * The State. [1958] S.C.R. 1040-at 1052; K.S. Dharinadatan vy. Central Government & Ors, [1979] 3 S.C.R. 832, referred to.

In the instant case, long’ before the date on which the cognizarice was taken by: the Spocial Judge, the accused had ceased to hold the office of the Chief Minister, and as: such had ceased to be a public servant in his capacity as Chief Minister. A

' fortiori no sanction’ as, contemplated by s. 6 was necéssary before cognizance of the offence could be taken against the accused for offences alleged to have been commit- ha

. The submission that if the - accused has held. or holds a plurality, of offices

; occupying each one of which makes him a public servant, under s. 6 sanction of each one of the competent authorities entitled 10 remove him from each one of the offices held by him, would be necessaryand if anyone of the competent authorities ” fails or declines to grant sanction, the court is precluded or prohibited from taking _ cognizance of the offerice with which the public servant is charged, is not acceptable. Such an interpretation of s.6 would rerider it as a shield.to an unscrupulous public

“servant. Someone interested in protecting’ may shift him ‘from one office of pitblic * servant fo another and there by.defeat the process of law. “Such an interpretation is contrary to all cannons of construction and leads to ah absurd end product which of necessity must be avoided. [520G; S18F—G] : As

Tie State- (SPE. Hyderabai) y. dir Convnodore Kailash Chand, [1980] 2.

; S. C. R. 697, referred ‘to and Parlly dissented from.

The expression’ ‘office’ in the three sub-clauses of 5.6(1) clearly denotes that

“_ office which ‘the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which’a sanction 10 prosecute him. is necessary * “by the competent authority entitled to remove him from that office which he has - abused. The sanction 40 prosecute a public servant can be given by an authority competent to remove him from the office which .be has misused or abused because

_ that authority alone would be able, to <now whether there has been a misuse or.’ ‘ abuse of the office by the public servant and not some rank outsider. The authority entitled to grait sanction must apply its mind to the facts of the case, “evidence col-’

- lected and other incidental facts before according sanction. A grant of sanction is not an idle formality. but a solemn and sacrosanct act which removes the umbrella said requirements must’ therefore, be’strictly complied with before any Prosecution could be launched against public servants. Therefore, it is implicit in s.6 that ae 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 a gainst him: [516H; 517A—D] -

" Molid, Iqbal Ahmed v. State of A.sP., (1979].2 S.C.R. 1007, referred to. .

>

. of protection of government servants against frivolous. prosecutions and the afore- . -.

es age

R..S, NAYAK y. A. R. ANTULAY 499.

The finding of the Special Judge that the respondent being’ M.L.A. was a public

Servant within clauses (12){a) (3) and (7) ‘of s.21 LP.C: and sanction of the Legis- . .

lative ‘Assembly to prosecute him was necessary, is riot correct, A person- would

- be a-public servant under clause (12)(a) of s. 21 LP.C! if he falls under any of the following three categories: (i) if he is in the service of ‘the Government; or (ii) if he is in the pay of the Governinent; or. (iii) if he‘is remunerated by fees or commission

. for the performance of any public duty by the Government. Looking into the history

. and evolution of s.21 LP.C. as traced and adopted as an. external ‘aid-to construc:

tion, it is clear that M.L.A.. was not and is not a.‘public servant? within the megning of expression . in any. of ‘the clauses of s.21 LP.C. As ssuming that it woud not

* be legally sound or correct according to: well-accepted carincn.of construct! or: of a statute to construe s. 21(12)(a) by mere historical ev olution of the, cecticn, the cofisti- ‘tutionally valid approach would be to look at the language employed in the section to ascertian whether M.L.A. is a public servant within the meaning of the expression in that section. Depending upon the context, ‘or’ may be read as ‘an? but the cout would not do it unless it is so obf ‘ged because ‘or’ dees not genéraily mean ‘ard:

and ‘and’ does not generally mean ‘or’, The use of the expression ‘cr’ in the con- text in which it is’used in-cl.(12) (a) does appear to bea disjunctive, ‘Therefore, these » thrée categories are independent categories and if a person falls in any of them he above three categories ? It was conceded that M.L.A..is not in the service of the Government but it was contended: that M.L.A. is in the pay of the Government. Undoubtedly, M.L.A. receives a salary ahd allowances in his. capacity as M. L.A.

undér the relevant statute. But does it make him.a person ‘in the pay of the Govern- :

ment’? The word ‘ pay’ standing by itself is open to various shades of meaning and

’ when the word is used in a phrase in the pay- of’ itis more likely to have a different. connotation. than when standing by itself. The phrase ‘in the pay of? would otdi-

. narily import ‘the element of ‘employment or paid employment or cniple, yed and paid by the employer. The phrase’ does not import of necessity a master-ser\ anit:

relationship. In its setting the phrase. ‘in the pay of the Government’ in cl. (12)(a) may comprehend a situtation that the person may be in the pay of the Government. without being in the employment of the Government or without there terga trasterservant relationship between the person receiving ‘the pay and the Government as

_ payer: Next what does the expression ‘Government’ in cl.(12)(a) of s. 21° .P.C. connote? Section 17 LP.C. ‘provides that the word. ‘Government’ denotes the Central, - Government or the’ Governtnent'of'a State. Sec. 7 LP.C. provides that ‘every ex- pression which is explained in any part of the Code, is used in every part of the Code

_ in conformity with the explanation’, Let it be noted: that unlike the modern statute . " s.7 does not provide unless the context otherwise indicate’, a phrase that prefeaces’.

the dictionary clauses of a ‘modern ‘statufe. Therefore, the expression “Goverrnment’ in 3.21(12)(a) must either mean the Central Government or the Government of a State.. The ‘Central-Government being out of consideration the question is whether M.L.A. is in the pay of the Government of a State or.is remunerated by fees for the performance of any public duty by the Government ofa State. Even

. though M.L.A. receives pay and allowances, he is not in thé pay of the State Govern-

-would be a public servant. The question is whethet M.L. A. falis-under any of the ment because legislature of a State cannot be comprehended in the-expression ‘State . -

- Government’. This conclusion would govern also the third part of cl.’ 'd2)@) i ie.

‘remunerated by fees for performance of any public duty by the Government. There."

fore, if M.L.A. is not in the pay of the Government in the sense of execulive govern- _ ment or is not. remunerated by fees for performance of any public. coy by the exe-

500 = SUPREME COURT REEPORTS ——«—=—[1984J 28.C.R,

-” cutive government, certainly he would not be comprehended in the expréssion ‘public servant’ within the meaning of the,expression in cl: (12) (a). He is thus not a public ° “f servant within the meaning of the expression in cl. (12)(a). This conclusion rein forces ‘the earlier conclusion reached after examining the historical evolution. of*cl. (12)(a). [537 A—B; 536G; E; H; 537 H;E; 539 D-E; 341 A; D—F; 543 D—E; 551 A~B]

Evolution of Parliamentary. Privileges by S. K. Nag; Legislative Bodtes Corrupt: ' Practices Act, 1925; Prevention of Corruption Act, 1947 by Setht.and Anand P. 60; Santhanam Committee Report dt. 31-3- 4964; Lok Sabha Debates (Third Series). Vol. 35, Cls, 729 and 731; The Anti-Gorruption, Laws (Amendment) Bill. 1964 (enacted as Act 40 of 1964); G.A. Monterio v. The State of Ajiner, [1956] S.C.R. 682; The State of Ajmer y. Shivji Lal. [1959] Supp. 2 $.C.R. 739; Prabhashanker Dwivedi and Anr, v. The State of Gujarat, AIR 1970 Gujarat 97; State .of Gujarat v. Manshanker Prabhashanker Dwrvedi, [1973] 1 S.C.R. 313; Green v. Premier Glynrohonwy

Slate Co. Ltd., [1928] 1 K.B. 561 at 568; Babi Manmohan Das Shah & Ors. v. Bishtu:

Das, {1967] 1 S.C.R. 836 at 839; Kamta Prasad Aggarwaletc. v. Executive Engmeer, Ballabgarh & Anr., [1974] 2 S.C.R. 827 at 830; M. Karunanidit v. Unton of India,

[1979] 3 S.C.R. 254; Constituent Assembly Debates, Vol. VII p. 984; Rat Sahib Ram - Jawaya Kapur & O?s, v. The State of Punjab. {1955] 2. S.C.R. 225 at p. 236; , Shamshet

Singh & Anr. y. State of Punjab, [1975] 1 8.CR. 841; Sardari Lalv, Union of India & Ors:, [1971] 3S. C. R. 461; His Majesty the. King v. Boston & Ors., {1923-24] 33 Commonwealth Law Report 386....82; Earskime May Parhamentary Practice 20 0 edstron. P. 149, referred to. : ; .

The Submission that the accused would bea public servant within the meaning of the expression any person empowered by law to discharge any adjudicatory ‘fun- ctions, incl, (3) of s.21 LPC. must be rejected. Participation ina debate on a motion of breach of privilege or for taking action for contempt of the House and voting thereon in a constitutional: function discharged ‘by the members and therefore, it

‘cannot be said that such adjudicatory functions if it can be so styled, constitutes adjudicatory function undertaken ty M.L.A. as; jempowerd by law. [554 EF]

Special Ref, No. 1 of 1964, [1965] 1 S.C.R. 413 at 1 pages 490, 491 and 472;

LC, Golaknath vy. State of Punajab, [1967] 2 S.C.R. 672; Sripadangalavaru v. State _ Of Kerala and Anr. , {1973} Supp. S.C.R. 1 referred to. 7

* “The submission that M.L.A. would be a public servant within cl. (7) of 5,21

LP.C. must be rejected: Cl. (7) takes within its ambit ‘every person who holds any Office by virture of which he is empowered to place or keep any person in confine- ment’, 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. To say that M.L.A. by virtue of his office. is perform-— ing ‘policing or prison officers’ duties would be apart from doing violence to language

"” lowering him’ in status. Additionally cl. (7) does not speak of-any adjudi catory function. It appears to comprehend situations’ where as preliminary to or an end product ofan adjudicatory function in a criminalcase, which may lead to imposition of a prison sentence, and a person in exercise of the duty t3 be discharged by him by virtue of his office places or keeps any person in confinement. [554 G; 555 F—H ’.

‘ “In view of the finding that M.L.A. is nota public servant under clauses (12)(a);

(3) and (7) of s.21 LP.C, and no sanction under s.6 of the Prevention .of Corruption

“4

;

R. 8. NAYAK ¥. A. R: ANTULAY - 50)

Act, 1947 is necessary to pr osecute him, jt is not necessary to ascertain which. woutd be ‘the authority competent to sanction prosecution of M L. AY {557 C)

‘Tn the instant case, the allegations in’ the complaint are all to the: effect ‘that the aécused misused or abused his office as Chief Minister.for corrupt motives. By the time-the Court wascalled 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 is irrelevant for concluding that no sanction was necessary to prosecute him under s.6-on the offences alleged to have been committed by the accused. Assming that as M.L.A. the accused would be a public servant under 5,21, inthe absence of any allegation that he misused or abused his office as M.L. A. that aspect becomes immaterial. Further s.6 postplates existence of a valid sanction for proseoution of a public servant for offences punishable -under ss.161, 164, 165 1.P.C. and’ 5,5 of the 1947 Act, if they are alleged to have been committed by a public servant, In view of the finding that M.L.A. is not a public servant within the meaning of the expres- - sion in s.21 LP.C., no sanction under s.6 is necessary to prosecute him for the offences alleged to have been committed by him. [556 Gi 557 A—B]

CRIMINAL APPELLATE JuRispicTION: Criminal Appeal 1 no. 356.

of 1983

From the judgment and order dated 25-7-83 of. the Special 3 fudge, Bombay in Special Case No. 24 of 1983."

ae “AND . Transferred Case No. 347 of 1983 . AND

Transferred Case No. 348 of 1983 Ram Jethmalani P.R. Vakil, Ms. Rani Jethmalani, Mukesh Jethmalani, O.P. Malviya, Shailendra Bhardwaj and Har ish Jagatlani

- for the appellant...

Dr. L.M. singhvi, Dalveer Bhandari, AM. Singhvi, S.S. Parkar,:

H.. Bhardwaj, U:N. Bhandari, HM. Singh, Ranbir Singh and S: G.

_ Hasnain for the respondent.

Ashok Desai and Mrs. J. Wad for the petitioner in T, C. No. 348 of. 1983.

: MN. Shroff for State of: Maharashtra -

K. Parasaran,..Attorney -General, Ms. A: Subhashini, -Gopal - + Subramanian, R.N. Poddar and C.V. Subba Rao for Union of India.

s 7% ea

” 7 S - ‘SUPREME COURT RT REPORTS oe [1984] 2 S.C.R. . The Judgment of thie Court was: delivered - Desat, J: Respondent ‘Abdul Rehman Antulay (hereinafter

. réferred to as the accused) was the Chief Minister of the State of Matiatashtra from 1980 tilt he submitted his resignaticn on January.12, 1982,

' which became effective from January 20, 1982. He thus ceased tohold “ the office of.the Chief Minister from January 20, 1982 but continues , to bea sitting member of the’ Maharashtra Legislative Assembly, til oO today.

. As the contention’ canvassed before this Court are mainly q questions of law, facts at this stage having a peripheral relevance in the : .

course of discussion; it is unnecessary to set out the prosecutidn case + . as disclosed in the complaint filed by. complainant Ramdas Shrinivas Nayak (complainant for short) i in detail save and except few a perti- nent and relévant allegations. In the: ‘process the brief history of the

- litigation may also be traced. -

The complainant moved: the Governor of 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 allég- -

- ed 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 Septem-

"ber 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 Secs. 161, 165 IPC and Sec. 5‘of the -.

-1947 Act, Sec. 384 and Sec. 420 IPC read with Secs. 109 and. 120-B IPC. The complaint runs into 31 closely typed pages and carried the.

list of 37 witnesses, ‘The learned Metropolitan Magistrate invited the © complainant to satisfy him as to how the complaint for offences under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act is maintainable without

‘held that in the absence of a valid sanction from, the Governor of

Maharashtra, the complaint ‘filed by the complainant forthe afore~_

- mentioned three offences was not maintainable. ‘The learned Metropo-

‘ a valid sanction as contemplated by Sec. 6 of 1947 Act and ultimately litan Magistrate accordingly held as per order dated October 6, 1981 —

"that the complaint was maintainable only for offénces alleged to have

‘been committed by the accused under Secs, 384.and 420 read with Secs. 109 and 120B. of the IPC and directed that the case be fixed for

R: §, NAYAK y. A. R. ANTULAY esa Oe $03 oe examining the’ complainant - as required by Sec. 200 of the Cr, PC. -’ The complainant questioned the correctness of this order in Special . Criminal Application No. 1742 of 1981 filed in the High Court. of

Ay udicature at Bombay.

“Tn the meantime, another developnient had taken place which ©

“may be’ briefly noticed. One, Shri P.B. Samant, who has also’ filed-an identical complaint against the accused, along with several], others filed a Writ Petition No. -1165 of 1981 in the High Court of Judicature of cement in the State of Maharashtra-as being contrary to the rule of law and probity in public life. The accused was. ihe second respon-

Maharashtra and, Union of India tespectively. By ah exhaustive speak- ing order dated September 23, 1981, a learned Single Judge of the ©

High Court granted rule nisi and made it returnable on November 23, 1981. The writ petition came up for hearing before another learned rule absolute. Probably. as a. sequel to this decision of the High Court,

_the accused tendered his resignation . as Chief, Minister on the same — day and when the resignation was accepted he ceased to. hold the office of. the Chief Minister with effect from January 20, 1982.

Special Criminal Application’ No. 1942 of 198] filed by the com- = plainant against the order of the learned Chief Mctropoliten’ Magi- strate 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 Maha- rashtra y. Ramdas Shrinivas . Nayak and Others ), Promptly, 00 the

‘at Bombay challenging the method of distribution ef ad hee allotment -

. dent in this petition, the first and third respondents, being the State of

- Single Judge who by his judgment dated January 12, 1982 made 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. I and others known and unknown. In this complaint it is broadly alleged that the accused who was’ the: Chief Minister of ‘the State of Maha-

(1) [1982] 2 S.C.C. 463. -

504 . - SUPREME COURT REPORTS - a 1984] 2 s.c.r.:

rashtra between the period August 1980 to September 198] “conceived: a scheme of aggrandisement involving obtaining of funds from the members of the public and putting them substantially ufder his own control for the disbursal of the funds so obtained. The complaint proceeded to refer to the setting up of various trusts and alleged that _ the corner-stone of the scheme involved receipt by the accused of ille- gal gratification other than legal remuneration as a motive or reward -for doing or forebearing to do any official act, or for showing or fore- bearing to show in the exercise of his official functions, favour or disfavour to -persons, or for rendering or attempting to render any:

service or’ dis-service to such | . persons who dealt with the State

Government in general and with public servants who formed part of the Government. It was specifically alleged that the scheme devised by the accused was a-flagrant abuse of his official position as Chief - Minister for obtaining control over funds which would be used for purposes conducive to the interest of the accused himself, The*com- : plainant proceeded to set out the abuse of office of Chief Minister by the accused, citing various alleged instances such as distribution of ad ‘hoc cement contrary.to law and the binding circulars, granting liquor licences as and by way of distribution of Government largesse, issuing

‘no objection certificates for letting out premises by obtaining a price for the same. The running thread through various allegations is that the accused by abusing or misusing his office of Chief Minister obtained or attempted to obtain gratification other than’ legal. remunetations a motive or reward for doing or forebearing to do any official act as

Chief Minister or for showing or forebearing to show in the excercise of his official functions, favour or disfavour to persons etc. To this complaint, the order granting sanction to prosecute the accused made by the Governor of Maharashtra was annexed.and produced. After

‘recording the vericfiation of the complainant, the learned Special Judge took cognizance of the offences and issued process by directing a bail- "able warrant to be issued in the sum of RS.: 10,000 with one surety { and made it returnable on September 3, 1983. -

* On the process being served the accused appeared and sought exemption from personal appearance which was granted for a day and the case was adjourned to October 18, 1982 for recording. the | evidence of the complainant and. his witnesses for the prosec ution.

When the case was called out on October 18, 1982, an application 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,

R- S. NAYAK v. A. R. ANTULAY (Desai, J.) . + 505

1952 1952 Act’ for short) and that no cognizancé 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, cccasion and if any revision or appeal is intended to be filed against the order, the.learned counsel for the accu- sed 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 notification in exercise of the powers conferred by sub-sec. (2) of Sec. 7 of 1952’ Act and in. modification of the earlier

‘Government Order dated April 12, 1982, directing that in Greater

Bombay on and after the date of the, notification the offences specified in sub-sec. (1) of sec. 6 of the 1947 Act which are investigated by the .

_ Anti-Corruption Bureau of Police in*Greater Bombay, except special cases No.-14, 15 and 16 of 1977 and Special Case No. 31 of 1979 to 37 of 1979 (both inclusive) shall.continue to be tried by Shri R.B. Sule. The net outcome of this notification was that Special Case No. 24 of 1982 pending in the Court of Special Judge Shri P.S: Bhutta would:

stand transferred to the Court of Shri R.B. Sule, Additional Special Judge for Greater Bombay. +

On a reference by the. learned, Single Judge, a Division Bench of: the Bombay High Court heard and dismissed on March 7, 1983, Criminal Revision Application No. 510 of 1982 filed by the accused against the order of learned special Judge Shri P.S. Bhutta dated October 20, 1982."The Division Bench in-terms held that the private com-

_ plaint was maintainable and as the. required notification has already ebeen issued, Shri R.B. Sule will have jurisdiction to try Special Case

- No. 24 of 1982. The learned trial Judge Shri R.B. Sule on receipt of the record of the case issued a notice on April 27, 1982 calling upon |” all parties to appear before him on April.21, 1983. It appears on July 8, 1783, two applications were moved on behalf of the agcused urging the learned trial Judge; (i) to discharge the accused inter alia on the ground that the charge was groundless and that even though the accused

- 506 oe SUPREME COURT REPORTS - (1984) 2 SOR had: ceased to bé, the Chief Minister, on the date of taking cognizance .

_ of the offences, he was a sitting member of the Maharashtra Legislative . Assembly and as such a public servant and in that capacity a sanction

~ to prosecute him would have to be given by the Maharashtra Legisla- tive Assembly and the sanction granted by the Governor would not be valid in this behalf, The second petition’ requested’. the learned 7

Judge to postopone the case till the petition for special leaye filed by . the accused against the decision of the Division Bench ‘of the High _ Court holding that the private complaint was maintainable is disposed of. Both these applications came up for hearing before Shri R.B. Sule, who by his order dated July 25, 1783 upheld the contention 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 dischatgcd the accused.

_ The complainant filed a. petition for special léave to appeal No. 1850 of 1983 and a Writ Petition (Cr1.) No. 145 of 1983 against the decisicn oe of the learned special Judge. Both these matters came up before this’ Court on August 3, 1983 when the matters were adjuorned to August ~

* 10, 1983 to enable the petitioner, original complainant to filé 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 leatned special Judge Shri R.B. Sule. This. Court ultimately granted, special leavé to appeal as-also rule nisi in the writ petition. By an order:

’ "made by this Court, the criminal revision application filed by the peti-

_ tioner stands transferred to. this Court.

It may be mentioned that this Court has granted special leave. to the accused against the decision of the Division Bench of the Bombay: * High Court holding that.a private ‘complaint j is. maintainable, ete. Crimi- -

_ nal Appeal No. 247 of 1983 arising out of the said: special leave petition is being heard along with this matter but that will be dealt with separa-

While discharging the accused, ihe Jearned special Judge held that the material.date for deciding the applicability of Sec. 6 of the .

1947 Act is the date on which ‘the court is asked to‘take cognizance of the offence. Ptoceeding further it-was held that even though the accused had ceased to hold the office of the Chief-Minister on the date

Ri $. NAYAK ¥, ALR: ANLULAY (Desai, J.) 507”

on which cognizance ‘was taken by the learned special Judge, Shri Bhutta, yet ‘on that date he was a sitting M.L.A: and was therefore,

- a public servant within the meaning of the expression in Sec. 21. (12)fa)

in aS much as the M. L.A. isa person in the pay of the Government or

’. at any rate he is‘ remunerated by fees for performance of public duty

_by the Government and therefore, he is a public servant.. As a corol= lary, the learned Judge held that as on the date. of taking cognizance of the offence the accused was a public servant, he could not be prose; . cuted without a valid sanction as contemplated by Sec. 6-of the 1947. .

Act, The learned Judge further held that the M.L.A. holds an office “ and he can be removed from that office iby the Legislative Assembly ° becausé © the latter has the, power to expel a member which would : amount to removal from ‘office. The learned Judge further held that as’ there was no sanction by, the Maharashtra Legislative Assembly |

_. to prosecute the accused and.as the Governor*had no power to san- “ction prosecution of the accused in his.capacity as M.L.A., the accused is entitled to be discharged for the offences under Secs. 161, 165, 120-B, , 109 IPC and Sec. 5 of the. 1947 Act for warit of a valid sanction for prosecution, and in sespect of the other offences, the accused j is entitled, to.be discharged on the ground that thé court of the special Judge had no jurisdiction to try the-accused for those offences.- In respect *of those other offences, the learned Judge directed the complaint. to be returned to the complainant for presenting it to the proper court, Jt may be mentioned that by.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 clauises-n may. :

be extracted as under: ra ; ’ .

21, The words ‘public servant’ denote .a- person’ falling oe _ unde, rany of ihe.descriptions hereinafter following, namelyi-~. |

, Third—Every Judge including ‘any person - empowerd . 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 empowerd to Place or keep any person in confinment.

Twelfth Ber) person— a) in the service ¢ or Pay of th the Government or rermunerated

508 . oe SUPREME COURT REPORTS — [1984] s.c.r.

" 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 established: by or under a Central, Provincial or State Act or a Government Company as defined in Section617 of the Companies Act, 1956.

Explanation 1: Persons falling under any of the atove descriptions are public servants, whether appointed by the Government or not”, . ce.

Sec. 17 defines the expression ‘Government’ to denote the Cen- .

tral Government or the Government of a State: Sec. 14 defines the expression ‘servant of Govetnment’ to denote any officer or servant continued, appointed or employed i in India by or under the authority of Government.

Sec. 19 defines the Word ‘Judge’ “as. under:

The word “Judge” denotes not only every person who is is officially designated as a Judge, but also everyperson ,

Who | is empowered by law to give, in any legal proceeding, civil or criminal; a definitive judgment, or.a judg- ~ ment which if not appealed against, would be definitive, --or a judgment which, if confirmed by some. other authority,would be definitive, or whois one of a body of ~~ persons, which body of persons is empowerd | by law to give such a | Judgment. 7,

Sec. 7 provides that ‘ every expression which is explained in. any part ‘of the Code (IPC), is used in every part of this Code i in conformity with the explanation.’

Sec. 5 of the 1947 Act defines the offence: of criminal misconduct and a public servant who commits an offence of criminal misconduct .

‘is liable to be punished with imprisonment for a term which shalJ not be less than one year but which may extend to seven years and shall — also. be liable to fine. eg.

~

Sec. 6 provides for a sanction as a pre-condition for a ‘valid prose- sO oo R. 8. NAYAK ¥. A. R. ANTULAY (Desai, J) oo 509

7 cution for offences punishable under Sec..161, 164, 165 IPC andSec.5 ° A | a of the 1947 Act. It reads as onder: . ,

“@(1) No court shall take. cognizance of an offence punishable under Section 161 or S&ction 165 of the Indian

_ Penal Code, ‘or under sub-section (2) of Section 5 of this .

‘Act, alleged to have been committed by a public servant, B , sO except with ‘the previous sanction, ;

A oe - (a) in the case of a person 1 who is employed in Connec- & ; tion. with affairs of the Union and js not removaa blé from his office save by or with the sanction of ~ the Central Government, oo . C

-(b) in the se of a "person who is employed in connection with the affairs of a State. and is not + oo removable from his office save by or. with ‘the. oo _ sanction of the State‘Government, —

(c) in the case of any other person, of the-authority competent to remove him from his office.

(2) Where for any reason whatsoeve any doubt . + arises whether the previous sanction as rrequired under: E sub-section (1) should be given by the Centra! or State > Government or any other authority, such. sanction shall 7” — _ 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”. - . o#F

’ 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 ihe laws relating to ‘bribery and corruption under the Chairmanship of Dr. Bakshi Tek Chand. The recommenda- , tions of. the Committee led to the enactment of the Criminal Law G mw Amendment Act, 1952. By the 1952 Act, power wag conferred on the , . State Government to appoint special Judges as may be necessary for A a sucti area of 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 ofthe 1947 Act andany H conspiracy to commit or any attempt to commit or-any abetment of

510. oo ; "SUPREME COURT REPORTS =|, [1984] 2 s.0R.

any of.the-offences-heteinabove mentioned; Sec...7 conferred exclusive jurisdiction on the special Judges appointed under Sec, 6. Sub-sec. (2) .

of Sec. 7 provides for. specific territoria] jurisdiction ofa special Judge.

‘ Sub- seca(3) conferred power on the special Judge also to try any offence ~

. other than an offence specified in Sec. 6 with which the accused may, onder the Code of Criminal Procedure, 1898, be charged at the same trial. Sec. 8 ‘prescribed the procedure to be“follwed-by the special

. Judge in the trial of the offences. The Court of -special Judge was - _ -deemedto be a Court of Séssions trying cases without a jury within‘ - the local limits of the jurisdiction of the High Court for the purposes’

of Chapter XXXI and XXXIL of the. Code of Criminal Procedure as . - |

Provided by Sec. 9.

The a ppellant. t ‘the ori iginal 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 Sec. 21(12)(a). _The second submission was that if the firstsquestion is answerd in the affirmative,’ :

- it would. be ne cessary to exarhine whether a sanction as contemplated, by Sec..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 com-"

plaint has alleged that the accused abused his office of Chief Minister and, riot 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., nonethe-

' less no sanction to prosecute him is necessary as envisaged by Sec. 6% of the 1947 Act. le was urged that as the allegdtion against the accused, "in the complaint is that he abused or misused his office as Chief. Mini- _ ster.and as by ‘the time the complaint was filed, and cognizance’ was

"taken, he had, ceased to hold: the office of the Chief Minister no san-

~. ction under Sec 6 was necessary to prosecute him for the offences alleged to have ‘been ‘committed by him when the accused was admit- : tedly.: a public servant in. his capacity as Chief Minister. ‘ i: 0a behalf ‘of the accused, it was contended that not only the

' accused would be.a public servant as falling within, the’ meaning of the -

~ expression in Sec. 21(1 2)(a) but he would also be a public servant within the contemplation’ of ‘clausés (3) and (7) of Sec. 21. The. next limb of the argument’ was that if an accused, hold plurality of offices, each of which confers.on him the 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. olfice held as Public servant, sanction of each authority com-

‘Bam Tasty r

R: 8. NAYAK ¥. A. R, ANTULAY (Desai, 5) os u petent 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 note vital points arise for consideration, some easy of answer and some none-:

tooeasy. For their scientific and. logical treatment they may be formulated :

_@). What is the relevant date with referencé to which a valid-. ‘sanction is a pre-requisite for the prosectution of a public . servant for offences enumerated in Sec. 6 of the 1947 Act?

; (b) ‘If the accused ‘holds plurali'y of offices eceupyingeach of

-. which makes hima public servant, is sanction of each -one of the competent authorities entitled to remove him from euch one of the offices held by him neessary‘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 i in 1 Sec, 6 “of the 1947 Act that sanction of . ‘ ‘that competent authority alone is necessary, whichis entitled to remove the public servant from the office © which is alleged to have been abused for misused for corrupt: motives ?

(a) Is M.L.A. a public servant within the meaning of ‘the expres sion in Sec. 21(12Ya) IPC. 2.

. (e) Is. M. LA.a a public servant within the meaning of the expression in Sec. a1) and Sec, 21(7) ICP’?

(f)" Ts sanction : as contemplated by Sec, 6 of the 1 1947 1 Act’ : "necessary for Prosecution of M.L.A: ?

mS (g) If the answer to (f) is in the affirmative, which, js the |. Sanctioning - Authority competent . to remove MLA. ‘from the’ office of Member of the Le gislative Assembly?: -

Re. (a): The 1947 Act 3 was enacted, as its long title shows, to- oH .

make more effective provision for the prevention of bribery and corruption, Indisputably, therefore, the provisions of the Act. must receive:

' woo

.-

512. "SUPREME COURT REPORTS a [1984] 2s.c.r, such constriction at the hands of the coust a8 wo ould advancehte ow object and purpose underlying the Act and at any. rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest *

» duty of the court to give effect to the natural me; aning of the words . used @the provisicn. The question of construction arises only in the . event of an ambiguity or the plain meaning of the words uscd in-the statute would be self-defeating. The court is ‘entitled to- ascertain the intention of the legislature to remove the ambiguity by, construing the © provision of the statute as a whiole keeping in view what was the misg chief when the statute. was enacted and to remove whiel the legislature enacted thé statnie, This ruie of construction is so universally accep- 4 ted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, jt would be the duty of the court to adopt tliat construction which .would advance the object underlying the-Act namely, to make ‘effective provision for > she prevention of bribery and corruption and at any rate not defeat bd

Section 6 bars the court from ‘taking cognizance of the offences’ therein enumerated altege] to have been committed by 2 public ser- yant 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 keen a subject of vigorous de vate in the cognate appeal. In this appeal we will preceed +» on the assumption that a special Judge can take cognizance of onenets “he is competent to try oma pfivate coniplaint. Sec. 6 creates a ber fo. the court from taking cognizance cf offences therein enum vated

- except with the previous sanction of the authority set out in claus¢ (a), (b) & (c) of sub-Sec. (1). The ebject underlying such provision’ was ‘% to Save the public servant from the harassment of frivolous or unqubstantiated, allegations. The policy unc nerfying Sec. 6 and similar ‘sections, is that there should not be unnecessaty harassment ¢f public * servant. (See C.R. Bansi v. State of Maharashtra” ). Existence thrs of a valid sanction is a pre-requisite to the taking cf cognizance cf the enumerated, offences alleged to have been commitied by a public * Servant. Thé bar is to the taking of cognizance of offence by the court. Therefore, ‘when. the court is called upon to take cognizances of such. ib

- offerices, it must enqure whether there is a valid sanction to prosecute the public servant for the offence alleged to have been conimitted by iy 1971) 3 SCR 236.

e oR. §. NAYAK ¥, As R: antutay, (Desai, Jy ° 513

_ him. as piblic servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and. Sec, 5(2) of the |

1947 Act clearly spell out that he offences therein defined, can be committed by g public servant. If it is contemplatded to prosecute public sorvant wo has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be availabie ota2rwise the court wou'd have no juristiction to take Wenizauce of the offence. A trial without a valid. sancticn where one is necessary under Sec. 6 has been held to be a- trial without jurisdiction by the court, (See R.R. Chari v. State of U.P.) and S.N. Bose v. State of Bihar?!) In Mohd. Iqbal Aimed v. State of AP. , it was held that a trial Without a sanction renders the proceedings ab initio void, But ; the ferminus a quo fcr a velid sanction is the time when’ the-court.is called upon to‘tahe cggnizance of the offence. If therefore, when the offence is alleged to have been committed, the accuged was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be, public servant, 0 sanction would be necessary for taking cognizance

‘of the offence against him. This approach is in accord with the policy underlying Sec, 6 in that a public servant is not to be exposed to harss- Ment of a frivolous or, speculative prosecution. If he has ceased to be a public servant in the meantime, this vital corisideration ceases

.to exist. As a necessary corohary, if the accused has ceased to bea public servant at the time when the court is called upon to take cognizance of the offence alieged to have been committed by him as public servant, Sec. 6 isnot attracted. This aspect.is not more res integra. in S.A. Venkataraman vy. The State’ this Court heid as under?

“In or opinion, in giving effect to the ordinary meaning of the Words used-ins. 6 of the Act, the conciusion is inevitable thatat tne ine acoarvis asked to take cogaizance not only the offence

_ must have been commitied by a: pubtic servant but the person accused, is still a pub‘ic servant removable from his cffice by @ 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 commited by them 45 pablic servants. Accordingly,.the ptovisions of s.6 of the Act

(hy [1963] 1 SCR, 121.

(2) [1968] 3S.C.R. 561... ’ (3) [1979] 2S:C.R. 1007. 7 (4) {1958} S.C.R. 104 at (052 o

514 oo "SUPREME € COURT REPORTS (i980) 28, CR.

did not apply: and the prosectition against them was not vitiated, by the. lack of a Previous sanction by a competent authority”. .

_ And this. view. has been. consigent followed in’ CR: ‘Bansi’s _ case and K.S. Dharmadatan v. Centra

' -a Valid sanction is sine qua non for taking cognizance of an offence

; commitigd bya public servant as required by Sec. 6 is the date on which -

-the court is caJled upon to take cognizance of the offence. of which-he a 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, 61982, The complaint from which’ the present appeal. arises and which was registered as Criminal Case No. 24/82 appears to have en filed on August 9, 1982 and the cogniz®hce, was taken by: the

. tearned Magist¥ate on th same day. It unquestionably, transpires that long bsfore the date on which the cognizance’ was'aken by the learned - special Judge, ‘the accused had ceased to hold the office of the Chief

‘Minister and as such had ceased to bea public servant. In other words, ° che was nota public strvant in his capacity as Chief Minister on August ‘9, 1982 when the court teok cognizance of the offence aga ‘inst him.

A fortiori no sanction as contemplated, by Sec. 6 was necessary before - _ cognizance of the offence could be taken against the accused for offen--

~.ces alleged to havé been committed in his former capacify as public

_ servant. Re: (b) and (c):, Tt was strenuously contended that if the’ . ‘accused has held or holds a plurality of offices occupying each one of whichmakes him a public servant, sariction of each one of the:

competent authorities entitled to remove him from ¢a ch one of the offices held by him, would be necessary and if anyone of the competent | authorities fails or declines to grant sanction, the court is precluded or prohibited fome taking cognizaince of the ‘offence with the public servant is charged, This submission was ‘sought to be repelled urging

Government. .& Ors.) Tt there- “fore appears well-settled that the relevant date with referee to which’

that it is implicit in Sec. 6 that sanction of that authority alone is ‘°

2 uy

_to contend that as M.L.A. he was a public servant on the date of taking cognizance. of the offences, and therefore, sanction of that authoriy, “ competent to temove him from that office is a sine qua non for taking,

‘cognizance of offences. Sec. 6.-(L)(c) bars taking cognizance of an

Orr TIT SCK 832

"+ necessary which’ i is competent to remove the public servant ‘from the.’ | office which heis alleged to have misused or abused for corrupt motives. . ‘Sec. 6(1)(c) is the only provision relied upon on behalf: of the accused _

‘¢

OR. 8. NAYAK vy. ADR. ANTULAY (Desai, J): SS

| offence alleged to haye been. “committed by public ser réant except with the previous snaction of the authorty competent to remove’ him from. his. office.

“Tn orderto appreciate the rival contentions ghe fact situation Telee ©

~ ‘vant to the topic under discussion may ‘be noticed. Ata general election held in 1980, accused was elected as Member of the-Legislative Assemibly of Maharashtra State fom Shrivardhan Assembly Constitutency.-

He was appointed as Chief Minister of Maharashtra State, and 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-coninued to retain his seat as M.L.A. The contenion-is that as M.LA., 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 cognizane of the offences set out.in the com- plaint without a valid sanction and therefore’ the court had no jurisdic- - ‘tion to take cognizance of the offences. In support of the sumbission ° it was urged. that if the ‘policy undelying Sec. 6 and. similar provisions « .

like Sec. 197 Cr. P.C. was to spare the harassment to the public servant corisequent upon launching of frivolous or speculative prosecutions,

-}» the sme would be defeated if it js held that the sanction to prosecute

4! from the office which he is alleged to have misused or abuséd. Proceed

_is necessary from an authority competent to remove the public servant ing along this line it was urged that even if the accused has ceased to bea public servant in-one capacity by ceasing to hold the office which he is alleged to ‘have misused of abused yet if he continued to be a spublic servant in another capacity, the authority competent 1o remove .

"him from the latter office would have to decide whether the prosecutien s

_ is frivolous or speculative and in larger public interest to thwart it — by declining to grant the sanction. It was also urged that if a public " servant has to discharge" some public duty arid perform some public functions and he is madé to cool his feels in law courts, public interest would suffer by keeping him away from his public duty and therefore, ° to advance the object underlying Sec, ‘6, the court must hold that if the public servant who is being prosecuted holds more than one public a office occupying each one of which makes him public servants, a san- ction to prosecute of each competent authority entitled to remove. him from each office is necessitus before taking cognizance of offences:

- against -him. It was urged. that: this, approach ‘would advance and

” 516 ae _ SUPREME COURT REPORTS (1984) 2.0, buttress the policy underlying Sec, 6 and the “contrary view would ‘defeat the same.

Offences | prescribed in Sec. 161, 164 and 165 IPC and Sec, 5-of the 1947 Act have an intimate and inseparable relation with the office ° of a public servant. 4 public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an iadivi- , dual person. In a sociely governed by ruic of law power is conferred. on office or acquited by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office: _

‘or power flowing from the status. The holder cf the office alone would have“ opportunity to abuse or misuse the office. These sections codify a well-recognised truism that power~has the tendency to corrupt. It

~ ts the holding of the, office which gives an opportunity to use it for.

- Cofrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrek.tion: and interdependence between individual and the office he holds . is substantial and not serverable. Each of the three clauess ef sub-s, (1)

of Sec, 6 uses the expression ‘office’ and the power to grant sanction is - conferred on the. authority competent to remove the public servant from his office and Scc, 6 requires a sanction before taking cognizance of offences committed by public servant. The offence culd be committed by the public servant by misusing or abusing the power of office and it is-from that office, the authority must be conipctent to remove’

him. so as to be entitled to grant sanction. The. removal would bring about ceasation of interrelation: between the. office and abtise by the

“holder of the office. The link between power with oppertunity 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 forebearing 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 ptoceeding 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 utisused or abused the power of office held by bim as public servant. The expression ‘offices’ in. the three sub-clauses of Sec. 6(1) would clearly denote that’ office which the public servant misused or abused _ for corrupt motives for which he is to. be prosecuted and in respect ‘of which a Sanction to prosecute him is necessary by the competent ' authority entitled to remove him from that office which he has abusté.

_-

>

RS. NAYAK ¥. A, A. Re ANTULAY (Desai. J.) - 517

This interrelation between te office and its abuse if sercred would render Sec. 6 devoid of any meaning. An this interrelation clearly provides a clue to the understanding cf the previsicn in Scc. 6 providing

~ for sanction by a competent authority who wcuid. be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cogaizance of offences by the court agai inst the public servant. Therefore, it unquesticnably follows that the sane tion to, prosecute can be given by an guthcrity competent to remove the- public servant from the office which he has missused or abused - because that authority alone would be able to know whether there has been a misuse or abuse of ‘the office by the public servant and not some. rank outsider. By a catena of decisions, it has been held that the ; authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before accord.

in g sanction. A grant of sanction is not an idle formality but a solemn .

and sacrosanct act which remoyes the umbrella of protection of govern- . ment servants against frivolous prosecutions and the aforesaid require. ments must therefore, be strictly complict with before any prosectition

' could be launched aganst pablic servants. (See Mohd. | Wgbal Ahmed Vv. State of. Andhra Pradesh). The Legislature advisedly. conferred power ‘.on the authcrity competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are. placed before him, to judge whether a: serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would te competent to judge whether on the facts alleged, there has been an abuse or _ misuse of office held by thé public servant. That authority would te in a position to know whatwas the power conferred cn the office which . * the public servdnt hold, how that power could be abused, for corrupt " motive and whether prima facie it has been so done. That competent authority 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 hicrarchy between the authority a 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. Jegislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servent . against whom sanction is sought from the office...

S18 * SUPREME COURT REPORTS” [1984] 2 s.cr.

— ~ Now if the public servant holds two. offices sind he is accused

‘of havi.ig abused’ one and from which Ke is temoved 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 .béen abused or misused:

_hecessary? The. submission is that if the -harassment uf the public ser- vant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public. duty, are the objects uaderlying Sec. 6, the same would be-defeated if it is held that the’

sanction of the latter authority is not necessary. The submission does o

‘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 wehether.

the prosecution is frivolous or tendentious. An illustration was: posed to the learned couasel that’a. Minister who is indesputably a public. servant greased -his palms. by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take'cogni- zance of the offence against him and therefore, sanction as contem~,

_ Plated’ by Sec. 6 would not: be necessary; ‘but if afler committing the offence and before the date. of taking. of cognizance of the offencé, he was elected as a Municipal President in which capacity he was-a public servant 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 netessary © and that too of that authority competént to remove him from the. office of the Municipal President. The answer was in affirmative. But the very iiustration would show that such cannot be the law. Such an

7 interpretation of Sec. 6 would render it as a shield 46 an unscrupulous

"-public servant. Someone interested in protecting may shift him from

“ry 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 Sec. 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 offict 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 publie offices would be necessary before the court can take cognizance’ of the offence committed by such public servant, while abusing one. office which he may have ceased to held, Such an inter-_ pretation in contrary to all canons of construction and leads to an

- absurd ‘and, product which of ‘necessity must be avoided. Legislation :

.-

. RS NAYAK ¥. A. R. ANTULAY (Desai, oe oe BEM

"must at all costs be interpreted in > stich a way that it would not operate : asa rougue’ 8 charter. (See Davis & Sons bea 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.B. Hyderabad)” -and the affirmance of that - decision by this Court ia The State (S.P.B.H. ryderabad) v. Air Commo- + _.doré Kailash Chand. ¥n- that case accused Kailash Chand was a mem-. ber ofth2 Tadiain Air Force having entered the service on 17th November ~ ' 4941. He ‘retired from the servicé.on f5th Fune., 1965, but was re-employ- ed for a period of 2 years with -effect.from 16th Tune, 1965. On 7th September, 1966, the respondent was transferred to the Regular Ait ' 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 behalf of the ‘acoused that the court could not take cognizance of ‘the offence i in the absence of a ‘yal’ d sanction of the authority’ competent to remove him ‘from the office held: by him as a public servant. The learned special Judge negatived the the contention. ‘ In the revision petition fited by the accused in the High Court, the learned Single Judge held that on the date of taking © ~cognizance of the offence, ‘the accused was a member of the Regular Air Force Reserve.set up under the Reserve and Auxiliary Air Force, 1952.and the rules made there under, Accordingly, - it was held that _ 4 Sanction to prosecute him was necessary and in the absence of which "the court couldynot tahe cognizance of the offences and the prose- . cution was quashed. In the appeal by: certificate, this ‘Court upheld . the decision of the High Court, This Court held following the deci- ,. sion in $.4. Venkataraman’s case that if the public servant had ceased * ” to bea public servant at the time of ‘taking cognizance of the offence, _ Sec, 6 is not attracted, Thereafter the court proceeded to examine | whether the accused was a public servant on the date when the ‘court took cognizance of the offence and concluded that once the accused. was transferred to the Auxiliary Air Force, he retained his character asa -public-servant because he was fequired to undergo training and

1) 11977] Imperial Court Reports, 66) - (2) (1973) I Andhra Weekly Report 263 vos ~ @) 11980] 2 S.CR. 697, Do

520, , : SUPREME COURT REPORTS , oO [984] 2s.

to be called up for service as and when required. The court further held that as such the accused was. a public servant as an active member of the Indian Air Force and a sanction to prosecute him under Sec. 6 was necessary. This decision is of no assistance fcr the obvious reason

‘that aowhere it was contended ‘before the court, which office was . alleged to have been abused. by the accused and whether the two offices were separate and distinct. It is not made clear whether the accused continued to hold the office which was-alleged to have been ‘abused or

_misused even at: the time of taking cognizance of the’ offence. But .

that. could not be so because the service of the-accused was terininated

"on April'1; 1968. while the cognizance was sought to be taken in June, sa

1969, Indisputably, the accused had ceased to hold that office as public servant which-he was alleged to have misused or abused. The Court was however, not invited: to consider the contention canvassed before us. Nor was the court informed specificatly whether the subse- quent office held by the accused in that 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 “decisons 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 cogni-

“zance 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 abised 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 in- | terpretation of Sec. 6.

Therefore, upon a true construction of Sec. 6, it is implicit thérein ;

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.

. in the complaint filed against the accused it has been repeatedly

- alleged that the accused as Chief Minister of Maharashtra State actepted gratification other than legal remuneration {rom various sources

4G, os

“~

UR. 8. NAYAK ¥. ALR. ANTULAY’(Desai, ¥) S21 and thus” co mamittéd various offences, set out in the complaint. No- _ "where, not even by a whisper, it is a‘leged that the accused has misused or abused for corrupt motives his office 4s M.L.A. Therefore, it is, crystal clear that the complaint filed against the accused charged him with criminal abuse or misuse of Only his office as Chief Minister. By.

_ the time, the court was called upon to take cognizance of the offences,

.so alleged in the complaiat, the accused had ceased to hold the office .

of the Chief Minister. On this short ground, it can be held that no sanction to prosecute him was necessary as former Chief Minister of

Maharashtra State. The appeal can succeed on this short ground. - However, as‘ the. real bone of contention between the parties was whe-:

- ther as M.L.A. the accuséd was a public servant and the contention | was canvassed at some length, we propose to déal with the same. ©

‘The learned special Judge held that the accused .as M.L.A. is a public servant because he i is in the pay of the Government or he is

'. remunerated by fecs for the ‘performance of public duty by the Government. The learned special Judge simultaneously rejected the conien- _

_fion canvassed, on behalf of the accuséd that the accused is a public

: servant because he is a person empowered by law to discharge asa member of a body of persons adjudicatory functions as contemplated

. by the Third clause of Sec. 21.

Rei (@): We would first examine the correctness or otherwise of the finding of the the learned ‘special Judge whether the accused as’ -

. MLL.A. was in the pay of the Governmment or was remunerated by fees for the performance of any public duty by the. Government so

‘as-to be clothed with the status of a public sérvant within the meaning

- of cl. (12)(a) of Sec. 21 IPC. Cl. (12)(a) provides that every person in .

the service or pay of the Government or remunerated by fees or commission. for the performance of any public duty by the Government would be a public servant. The three limbs of cl. (12)(a). according. to | the learned special Judge are:

(4) Every person inthe setvice of the Government; or. (ii) Every person in the pay of the Govertiment; 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 »

52) . Se ‘SUPREME ‘COURT. REPORTS learned. special Judge; he would be a a public servant within: the weaning a of | the expression in Sec. 21. TPE.

oy

= ft was concéded before the learned special Judge and not retracted .

before us that the case of the accused does not fall in'the first limb ice. the accused a§ M.L.A. could not be said to be ia 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 sécond limb of the submission was. that even ifthe pay which .

the accu ed received as M.L.A. tinder 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 thie accused a would receive: for: performance of public duty from -the Government. It was contended on behalf of the complainarit that the, expression’ ‘in the pay of the Government’ would, in the context in which the ex- pression is uscd in S2c . 21(12)(), méan only one thing that the -pay- -

“rhient must be by‘a master to a servant and unless there is relationship _of master and servant or relationship of command and obedience between the payer and the payee, mere payment even if styled as pay ~~ would not mean that the payee is in the pay of the payer..’ Proceeding along it was. submitted that M.L.A. could not be said to be subject a to obedience of any coinmand by the Government, and therefore the accused as M.L.A. could not be said to be ‘in the pay of the Goyern- 7 ment’. And as regards the third limb, it was urged that the accused as M.L.A: was not: performing any public duty for the performance.

of which he was remunerated by the Governmont. Additionally, it was urged that’ the expression ‘Government’ in cl. (12) (a) must receive the same meaning assigned to it in Scc. 17 IPC. meaning thereby that it denotes. the Central Government or. the. Government of | a State as the .

context requires, It was urged that in that sense the expression *Go- vernment’ in cl, (12)-(a) would mean ‘Executive Govértiment’ and it | would be adding insult.to injury -if it can ever be said that MLL. A. is "in the pay of thé Executive Government or State Government. On ~ behalf of the accused’ these submissions were repelled by urging that . the use of word-‘or’ signifies a disjunctive and not conjuctive and-that viewed from this angle the first part of cl. (12) (a) ‘in the service of the:

. Government’ would import the notion-of master servant or command - obedience relationship, but the expression ‘in the pay of the Govern- “ ment’ would signify s»meone other than ‘that included in the first limb

_ and as th legislature could: -not be accused of tautology or redundancy the expression ‘in the pay of the Government’ would exclude any notion ef master servant or command obedience relationship. it was submit- at ws

, R.’S.. NAYAK ¥, A. R. ANTULAY (Desai, 1) - 523.

ted. that conceivably there can n be a person in the service of the Govern- . ment though notpaid by the Government and conversely there’can be

“a person ‘in the pay of the Government? without being-in the service of ihe Government. It-was also submitted on behalf of the accused that it would be constitutional impertinence 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, és nontheless- a-constitutional duty. which ‘he ts performing and that duty would be comprehended in.the expression ‘public duty’ in cl. (12) (a). Asa corollary it was submitted _that the remuneration in the form of pay which the acctised receives - and has been receiving since he ceased to be the Chief Minister under

_ the’ relevant Act is remuneration for ¢he 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” “Gover nment” in cl. (12). (a).

At the threshold leatned counsel for. the .accused sounded a not2 of caution that the Court should steer clear of the impermissible

. attempt of the appellant to arrive ata true meaning of a legislative . provision by delving deep into the hoary past and tracing the histori- ‘cal evolution of the provision awaiting construction: It was submitted “ with emphasis that this sugested external aid. to ‘construction. falls in the exclusionary rule ‘and cannot be availed. of. Therefore, it has

‘become necessary to examine this preliminary’ objection to the ceurt resorting to this external aid to construction. Sec. 21 (12) (a) acquired _its present form in, 1964.

- Mr. Singhvi contended that even where the words in a statute are: ambiguous and may be open to’ more than one meaning or sense, a reference to the debates in Pailiament ‘or the report of a Commission,

_or a Committee which ‘preceded the enactment of the statute under consideration is -not a permissible aid té construction. This is‘ what

_ 18 called: the exclusion iary rule, In support of the: submission, reliance:.

was placed upon Assan Raihvays and Trading Co. Ltd. v. Inland Reve- nue‘ Commissioners in which the House of Lords declined: to look © into the Report of the Reyal: Commission cn Income tax in order to ascertain the mea ning < of certain words in the Inccme Tax Act, 1920.

on the ground that no such ¢vidence for the purpose of showing the intention, that is the purpose or object, cf an Act is admissible. The intention of the legislature must be dsccrtained from the words of’ the

(1) [1934]«All. E.R. 646 (Reprint):

“oN

»

52400 _ SUPREME COURT REPORTS a [1984] 28.0 statute which such extranuous assistance as is. legitimate. This view - Appears to have been consistently followed in United,Kingdom because in Katikiro of Buganda v. Attorney General, the Privy Council held’ . in agreement with the Court of Appeal of Eastern Afiica that the con- - - tents of the White Paper were not admissible in evidence for the purp- . ose of construing the schedule. Similarly in Central Asbestos Co. Ltd. v. ’

Dodd®), the House of Lords declined to look at the Committee Report which preceded the drafting of the Act. In the Administrator General of Bengal v. Premlal Mullick & Ors’, the Privy Council disapproved the teference to the proceeding of the: Legislature which resulted in’

the passing of the Act IJ of $874 as legitimate aids to the construction

- of Sec. 31 by the Appeal Begeli of Calcutta High Court. Relying on_ these decisions, a valiant plea was made to persuade us not to depart”

from this well-accepted proposition of law in England. The.-trend of law manifested by these decisions broadly indicate that in the days gone by the courts in England were of the view that reference to the

. recommendations of a Commission or Committée appointed .by the Government or statements in White Paper which shortly preceded the _ statute: under consideration were not legitimate aids to construction

. of the statute even. if the words in the statute were ambiguous. .

The trend certainly seems to be in the reverse gear in that ia order to ascertain the (rue meaning of ambiguous words in a statute,

‘reference to the- reports and recommendations of the Commission of

Committee which preceded the enactment of the statute are held, legi- timate external aids .to construction. The modern approach has to ° -a considerable extent roded the exclusionary rule even in England,

A Constitution Bench of this Court after specifically referring to Assam

Railways and Trading Co. Ltd. v. LR.C. in. State of Mysore ' v. RV, ‘Bidap“™ ‘observed as under:

**The trend of academic opinion and the practice in the

European system Suggest that interpretation of a statute being -.an exercise in the ascertainment of meaning, every thing which is logically relevant should be admissible... .. bebe eee eee es ,

_ There is a strong case for whittling down the Rule of Exclusion - followed in the British courts and for less apologetic. reférence to legislative proceedings and like materials to. read the meaning |

(1) [1960] 3 All. E.R. 849 ; * (2) [1972] 2 All. E.R. 1135 at 1138,

~ (3) LLR. 22.Cal. 788: mo (4) [1974] 1 S.C.R. 589 at 594, ee ,

. R..S. NAYAK vo ALR. ANTULAY (Desai, BK) _ $25 ". 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 may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words -of the authors and other allied matters.” a ;

Approaching the matter from this angle, the Constitution Bench looked into the proccedings of the Constitutent Assembly and “The Efamaing of India’s Constitution; A Study’ by 8. Shiva Rao. It was however urged that before affirmatively saying that in. Bidap’s case this Court has finally laid to rest this controversy, the court, may refer to ‘Commissioner of Income Tax, Andhra Pradesh, Hyderabad v. Jaya- lakshmi Rice and Qil Mills. Contractor Co.” At page-368-a beng of | three Judges of this Court without so much as examining the principle underlying the exclusionary rule dissented from the view of the High Court that the report of the Special Committee appointed by the - Government of India to examine the provisions: of the Bill by which Sec, 26A was added to the Income-tax Act, "1922 can be taken into consideration for the purpose of interrpreting relevant provisions of the Partnership Act. However it may be stated that the Court: did not refer to exclusionary rule. It dissented from the view of the High Court on the ground that the statement relied upon by the the High

_ Court was relating to clause 58 corresponding. to Sec. 59 of the Partner- _ ship Act and that statement cannot be taken into’ consideration -for -.”

the purpose of interpreting the relevant provisions of the Partnership

- Act. This decision was not noticed in Bidap’s case but the decision in

Assam Railways & Trading Co. Ltd. relied upon ‘by Mr. ‘Singhvi was - specifically referred to. This “decision cannot therefore be takén as an authority for the proposition’ canvassed by Mr. Singhvi. Further. ~ even in the land of its birth, the exclusionary rule has received a serious jolt in Black-Clawson International Ltd. v. Papierworke Waldhef Ascheffenburg AC®) : Lord Simon of Claisdale in his speech while. examining the- question of admissibility of Greer Report observed as under:

“At the very least, ascertainment of the’ statutory objective can immediately eliminate many-of the possible meanings that the language of the Act might bear: and, if

“(1 [1971] 3 SCR. 365,

« (2) 1975] 1 AIL E. R.-810. |

526 " "SUPREME court REPORTS. [1984] 28.0. an ambiguity still remains, ‘consideration of the _ statutory objective. is one of the means of resolving it.

The staturory objective j is. primarily. to “be” collected from the provisions of the ‘statute. -itsélf, 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 alt the guidés 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 ts, indeed clear and high . auth- © “+ ority. that i it ‘is available for this purpose” oa ae 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 i is an ambiguity ina statute, the court: may have’ rogard 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 intendéd 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 of the law and. ‘the mischief required to be remedied, it: must be stated that the majo- -rity Were of the opinion that report could not be looked at to ascertain . the intention of Parliament. The minority (per Lord Dilporne and - ' Lord Simon) were of the opinion that when a. draft bill was enacted °. in a Statute without any alteration, Parliament clearly manifested its intention to accept committee’s recomnfendation which would imply that Parliament’s intention, was to do what committee wanted :to

'. achieve by. its. recommendations. A referenge to Halsbury’s Laws of

"England, ‘Fourth Edition; Vol. 44«paragraph 901, would leave no one .. in doubt that ‘reports of commissions or committees preceding. the enactinent of a: statute may be considered as showing the mischief ' ‘aimed at and the state of the law as-it was understood to. be by the “— Iégislature when the ‘statute was passed.’ In the footnote under the ‘statement of law cases quoted amongest others are R,.v. Ulugboja') * R.v. Blexham®. in which Eigth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction.- Therefore, it can be confidently said that the exclusionary rule is flickering in its me?) [i981] All, E. R. 443

(2) {1982} 1 All. B. R. 582 ce, — RS. NAYAK ¥, AR. ANTULAY (Desai, J): 527.

dying embers in its native land of birth and has been given a 1 decent burial by this Court: Even apart from ‘precedents the basic purpose underlying all canons of construction is the ascertainment with reasonable certainty of the intention.of . Parliament in enacting the

‘legislation. Legislation is enacted to achieve a certain object. The © . object may be to remedy a mischief or to create some rights, obligations or impose duties, Before undertaking the exercise of enacting’a Statute,

-Parlaiment can be taken to be aware: ‘of the constitutional: principle of judicial review meaning thereby the- legislation would-be dissected _and subjected to microscopic. examination. More often an: expert ° committee or a Joint Parliamentary committee examines the provisions of the proposed legislation.. But language being an inadequate vehicle of thought comprising intention, the eyes scanning the’ statute would

_be presented with varried meanings. If the basic purpose underlying construction of a legislation is to ascertain the real intention of the

Parliament, why should the aids which Parliament availed of such as

Feport of a special committee preceding the enactment, existing state of faw, the environment necessitating enactment of legislation, and th? 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 aid to construction. Therefore, departing - ,

“from the earlier English decisions we are of the opinion that Teporis . of the committee which preceded the enactment. of a legislation, re~_

_ ports 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 j 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 legislative history is inadmissible when there is’ no obscurity in the meaning of the statute”.

Ta United States. St. Paul, MM. Rly. Co.) itis observed that °

0) 62 Law ed. 1130 at1134- ; * rm

«528: SUPREME COURT REPORTS - [1984] 2 S.C.R.

E.

~ the reports of a committee, including the bill as intozduced, changes

‘made in the frame of the bill in the course of its passage and the state-

_ment mad? by the committee chairman incharge of it, stand upon a different footing, and may be resorted to under proper qualifications’.

The objection therefore of Mr. Singhvi to our looking into the history

_ of the evolution of the section with all its clauses, the Reporis of Mudi- "man Committee and K. Santhanam Committee and such other ‘external aids to construction must be overruled. .

Tracing the history of cl. (12) of Sec. 21 IPC with a view ta ascettaining whethér M.L.A. would be comprehended in any of the clauses of Sec. 12 so’as to be a public.servant, it must be noticed at the outset that Indian PenalsCode is a statute of the year 1860 when there were no elected legislatures and a fortiori there were no M.L.As. Even if Maoaulay is to be adjudged a visionary, who cotild look far beyond his times yet in 1860 it was inconceivable {Sr him to foresee

. the constitutional development of India stages by stages orc to envisage the setting up elected legislatures, the members of which we uld. without anything more “be comprehended as public servant in any of the sub-

. clausés of Sec. 21. ‘Undoubtedly, framing of a legislation is generally not of a transient nature but it is enacted and put on the statute book

' for reasonably long period until the society for which it-is meant un- dergoes a revolutionary transformation so as to make the law irrele- vant or otiose. A visionary can foresée possible changes which may = be inter-connected with the present situatiori one leading to the other. -

But the East India Company rule which had just ended: in 1857-after the first war of independence, it was difficult to devine the possible

' revolutionary changes that may come in by 1919. At any rate at the © time when the Indian Penal Code was enacted, there was no elected legislature and therefore, there was no M.L.A. In construing a statute

“more especially the ancient statute, the court may look at the surround- ing circumstances when the statute was enacted. In Halsbury’s Laws

_of England, Fourth Edition, Vol. 44 paragraph 898, it is observed that - the construction of-ancent statutes may be eludicated by what in the language of the courts is called contemporanea expositio, that is, by - secing how they were understood at the time when they were passed.

and unambiguous. At ‘any rate, one can justifiably say ‘that MLL.A. could not be coniprehended in any of the clauses of Sec. 21 to be-a

‘public servant when the Indian Penal Code was enacted in 1860.

o: oy

- Undoubtedly, this doctrine cannot be applied to modern statutes or .indeed to any statute whose meaning appears to the court to be plain |

ORS, NAYAK ¥. AR. ANTULAY (Desai, I.) 5

The next stage in the historical evolution of the law with regard

_4 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 recommenda:

tions 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 pene! 4 offences under the ordinary criminal Jaw and para 124 indicates that this recommendation was a unanimous*recommendation of the Committee as a whole. Then comes the more important statement which may. be extracted:

ind

- “The tender of a bribe to, or the receiving of a bribe oe by, a member of a legislature in India as an inducement for him to actin a particular manner as a member of the _Teeisiatur is not at present an fence," , vs

“The ] Bill sought to fill in the ‘lacuna. It ‘thus ‘follows that tl] 1925, o

"it was clearly understood that the M.L.A. as the. holder of that office,

‘which must have come into existence by the time under the Gevernment of India Act, 1919, was nota public servant falling in any of the’ clauses*of Sec. 21 and this lacuna was sought to be remedied by in-|

A foticing Chapter 9-B bearing the heading ‘Of offences by or relating “to members of Legislature Bodies’.. The dictionary clause in the Bil] ~ me would have included M.L.A. in the expression “Member of Legis-. lative Bodies’. The object of the Bill was to provide for punishment of -corrupt practice by or relating to members of Legislative Bodies > constituted, under the'Government of India Act. This was to be passed by the Central Legislature. It was an abortive’ attempt by members

» themselves to be brought within the purview of the penal law. One can write a finale by saying that the Bill was not énacted into law. That is the second stage in the history of evolution.

* _ Before we proceed further in the journey, it is necessary to take note of one intermediate stage to which our attention - was not drawn during the arguments. In Prevention of corrvytion Act, 1947 by | Sethi and Anand at page 50, it is mentioned that till Criminal Lew

. (Amendment): Act, 1958 (Act No. II of 1958) was put on’ the statute - book, Sec. 21 of the IPC consisted only of eleven clauses. Clause -12

| 530 cae | "SUPREME COURT REPORTS [1984] 28.03.

was introduced by the aforementioned. Act and it read: ‘Every officer ' . in the service or pay of a local authority, or of a Corporation engaged “ym -in any trade or industry which is established by a Central, Provincial - or State Act or of a Government Company as defined in Sec. 617 of . _° the Companies Act, 1956’. Obviously; as incorporated clause 12 would not comprehend M.L.A. and cl. 9 as it stood till then, could not haye: - comprehended him as would be presently pointed out. Cl. 12 intro- . ‘duced by Act II of, 1958 is-re-enacted as ct. 12 (b) and it is nobodv’ 8 case that M.L, A. is covered in cl. 12 ©): co The next stage of development ma; now be noticed. While -. _ participating in the debate on the demand for grants'for the Ministry-f . 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, thé 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 y

, suggestions. ‘Pursuant to this annoufcement, 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 4 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 is most important for Ee "the Present Purpose. “Tt reads as under:

“7.6 Section ‘21. defines “public servant’. ‘Twelve |. categories of public servants have been mentioned, but the n - present definition requires to be enlarged. The ninth category

- describes a large variety of officers: charged with the performance of different kinds of duties relating to pecuniary intet;"

“ests of the State. The last. sentence of this category, namely, “every officer in the service or pay of the Government . or . remunerated by. fees or cofnmission for the ‘performance “of

- any public du y’* ’ should be put as a generai definition. After : the word “‘government”, hé twords “‘local authority”, “public a corporation”, or “government company” should be added.’

"The words ‘‘engaged in any trade or industry’? may also be.

deleted from’ the ‘twelfth clause of: Section 21 as these words .

RS. NAYAK ¥. AR. ANTULAY Desai. J. ), - 531 to have a restrictive effect. It should also be, made ‘clear that “A . all Ministers, Ministers of State, Deputy Ministers, Parlia- mentary Secretaries and members ‘of local authorities come - under the definition of ‘public servant’? A: futher category — should be added.to include all persons discharging adjudica- tory functions under any Union or State’ Law for the time © being in force. We. also comsider it necessary to include

__ the following ‘categories _ within the, definition of the term.

ho ‘pulbic’ servant? :—>

“4. - President, ‘Secretary and, all ‘members of Managing - Committee” of a registered Co-operative Society; a all woo “Office bearers and employees of “eductional, social,.

religious and’ other ‘institutions, in whatever: manner . established, which receive aid in any: form from ‘the Central

> or State Goverament”.

* ‘This recommendation led to three iraportant ainendments in

- els. 3, 9 and 12.0f Sec, 21. The unamenided clauses and the effect of | the amendment in 1964 must be brought out in sharp contrast so as to appreciate the change made. and if its effect on the language employed.

ss Clause as they stood prior to the 1964 Amendded by the 1964 amendment a _ Amendment. “Third: Every Judge: a > Third: Every “Judge in- 7 m, _+ °° Ancluding any person empo- wered by law to discharge, whether by himself or as a . member of any body of per- . . sons, any adjudicatory fun- ctions; ,

Ninth: : Every officer whose duty it Ninth + Every“ officer. is, as such officer to take, receive, keep, whose duty it is, as such or expend any property on. behalf of - officer to. take, receive, keep, _ the.Governiment, or to make any sur- or expend any. property on: * vey, assessment, or contract on be- behalf of the Government, -" half of the Government or to execute or to make ariy survey, asany revenué—process,” or to investi~ sessment or contract on begate, or.to report, on any matter affec- half of the Goveramentt or to

53270 SUPREME COURT REPORTS. ting the: pecuinary interest of ‘the’ execute any révenuc—fp rocess, Government or to meke authenticate- or to investigate, er to-report, or keep any document relating to the ‘on’ any matter affecting the pecuniary interest of the Government, * pecuniary interest, of the Go- or to prevent he infraction of any law “vernment, or make authenti- for the protection of the pecuniary in- cate of keep any document. terests ,of the Government, and every relating. to the pecuniary in-:

officer in thé service . or pay of .the terests of ihe’ Government, . Government’ or remunerated by fees or to prevent the infraction of or commission for the performance of any law for’ ‘the protection any public duty. the Government.

11984) 2S.0.R. |

-(Onderlining ours);

* Twelfth: Every officer in the service

-or pay of a local authority or of a cor-:

poration engaged in any trade or industry “whieh is established by a Centtal, Provincial or State Act or of a Govern-

Twelfth ; Every person! (a) inthe service ‘or pay of the Government or remune- rated by fees or commission « for the performance of any ment..Company as defined in section 617 of the Companies Act, 1956. - Ment; “(b) in the service or.pay of a local authority, a corpora- + tion established by or- under

Central, Provincial. or State’ Act ot a Government Com- pany as defined in section 617 of the Companies Act, 1956.

fe a eg

A bare comparison of the two cls. (9) and (12) would reveal the .

change brought by the Amending Act 40 of 1964. The last part (under- lined portion):in the unamended cl, (9):-‘every officer in the serviee or - pay of the Government or remunerated ‘by fees or- commission for the performance of | any ‘public duty’ has been severed from the 9th clause and incorproated as an independent clause (12) (a). The origii nal clause (12) was deleted and has been re-enacted, as cl. (12) (b)

_with minor: ‘modifications. This history of development ‘is noteworthy “for ayvery compelling Teason to be presently mientioned.

public .duty by the Govern.

of: the pecuniary’ interests of = v

4 . “yg

RS. NAYAK V. AR. ANTULAY Wesai, 1 ,) 333 .

discretionary power. and this ‘included: Minister both Cabinet and State,

Deputy Ministers: and parliamentary Secretaries. ML As were not ° considered holding poliical -offices capable of abuse of power. The Committee recomended amendment of the definition of the expression ‘public servant in Sec. 21 IpC so as to include ‘Ministers of all rank of Central and State level and Parliamentary Secretaries in

"the - definition of ‘public servant’. The Committee did not ‘recommend, that the proposed amendment should comprehend M.LL.A..

The Committee separately dealt with the M.L.As in paragraph 11.4 in Sec. 11: of the Report’. After’ stating that, ‘next to the Minister, the integrity of Members of Parliament and of legislatures in the State will be a great factor in creating a favourable soical climate against cofruption..... It is desirable that a Code of Conduct . for legislators embodying these and other principles should be framed by a speeial committee of reprsentatives of Parliament and the. legislatures nominated by the Speakers and Chairman. This Code should be . formally approved by resolutions of Parliament and the _ legislatures - and any infringement of the Code should be treated asa breach of

“privilege to be 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 recommen-

_ dations of the Committee which were accepted by the Government led to tha introduction of The Anti- Corruption Laws (Amendment)

Bill 1964 (Bill No. 67 of 1964) in the Parlirment, The salient features

- of the Bill worth—noticing are that cl. (3) of Sec. 21 was proposed ‘to - be amended as recommended with minor strretural-change. Cl. (9)

of Sec 21 was dissected as recommended aud its last part - ‘and every officer in the service ar@ 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 clauses 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 Lok Sabha. Mr. Hathi Minister—incharge while piloting the Bill, on Noveniber 7, 1964 amongst others stated that the will not deal with those recommendations which had not

‘been accepted by the -Gevernment, but would explain them later, - . if any point is raised in that behalf, (See Lok Sabha Debates (Third gr ’ .

ou

S

. 534 . SUPREME: COURT ‘REPORTS

* revert, -the definition ‘public servant’ to include Ministers-has not been accepted .

that he. will not deal with those recommendations which, had not ,

‘not -been accepted by the Government, bit. would ‘explain then later, if any point is raised in that behalf. (See Lok Sabha Debates (Third ,

Series), Vol. XXXV, Col. 245) While replying.to the debate, Mr. Hathi stated that the code of conduct has already beeri evolved for Ministers .because the recominendation of Santhanazi Committee for including .

Ministers of all tanks aid Parliamentary Sccretaries.jn the définition

_ of ‘public servant’ was not accepted by the Government. But there is an interesting caveat to this statement to which we would presently —

He further stated that the specific recommendations about and included in the. Bill because Ministers are not merely public ser- vants but they have a greater moral and social ‘responsibility: towards ‘the people. Later-on in the ‘debate it was’ conceded that the Minister . - is already included in the defiaition of ‘public. servant’ even before the proposed ainendment in view of -the decision of the Supreie Court in Shiy Bahadur Singh's case in which Minister was held to:be a: public ~- servant. It was further'stated that in view of this judgment, the Govern- '

‘ment was advised that the recommendation of the Santhanam Conmittee for inclusion specifically of Ministers of all rank and Parliamentary

‘ Secretaries’ was redundant. (Sec Lok Sabha Debates (Third Series). . Vol. 35 cols. 729 and 731): Whatever that may be the conclusion is ..

inescapable that till 1964 at any rate M.L.A. was not ‘comprehended in the definition of ‘public servant’ in Sec. 21. And the Santhanam :” Committee did not recommend its inclusion i in, the definition of ‘public, =.

Servant, ‘in Sec. 21. "Bill No.-47 of 1964 was enacted as Act 40.of 1964, Now if prior: to ‘the: enactment: of Act 40 of 1964 M.L.A; was not comprehended

_as a public servant in Sec. 21, thé next question‘is: -did the amendnient

-make any difference in his position. The amendment . keeps the law virtually unaltered. Last part of cl, 9 was ‘enacted as cl. 12. (a). If -

M.L.A. was not comprehended i inclause 9 before its amendment and dissection, it would make no difference’ in thé meaning of law ifa 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™ follo-

| wed and approved i in The State of Ajmer y. Shinji Lal in both of

(1 [1956] SG. 682,

( (2) [1959] Supp.'2 S.C.R. 739.

[1784] 2 S.CR4.

Yr

(4) Ain 1970 Gujarat 97.

ORS. NAYAK ¥..A.Re ANT ULAY (Desai, J) os 338 which cl, (9) as it stood prior, to its ameniiment came up for constniic-

’ tion. In the first..méntioned. case, the accused was a chaser in thé

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 reilway school at Phulera. His contention was that he was not a ‘public servant and that. 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 accused — would be covered by the last part of cl. (9) becduse the accused fulfilled - the twin ‘conditions of either being in the servicé or pay of the Govern:

ment and was entrusted with the performance of a- public duty, It may .

also be mentionéd that the last three words “by the Government’ found is substantially re-enacted as cl. (12)(a). The Gujarat High Couit in

Manshanker P:abhashanker Dwivedi ang Anr.v. The State of Gujarat) — traced the history of amendment that payment by the Gévernment: ~ was implicit in cl. (9) though the words ‘by the Government’ were not _ ‘there and were added to cl]. (12){a) after re-enacting the last part of _ Cl. (9)-as (12)(a). This becomes clear from the decision of this Court in the appeal against the judgment of the Gujarat High Court in‘ the tion for showing favour’ to a candidate by. giving him more marks

‘than he deserved in‘ the Physics practical examination. The: learned special J ‘udge convicted him. In the appeal, the High Gourt after taking

’ in cl.(12) (a) after the amendment were not there in the last part of cl. 9” . The question was whether addition of words ‘by the Government’ ‘made any difference in the interpretation of last part of cl. (9) which

State of: Gujarat v. Manshanker Prabhashanker Dwivedi.) The accused . in that case was charged for having committed offerices under Sec. 161 . - --IPC and, Sec. 5 (2) of th®.1947 Act. The facts alleged were that the _accused—respondent before this Court was an examiner appointed .by the: University for the first yeat. B. Se. -€xamination.. He was alleged to’ have accepted gratification of Rs. 500/- other than legal remunera- note of cl.9 and cl. 12 of Sec. 21 prior to their amendment by Act 40...

of 1964 held that for cl: 9 to apply the person should be an officer ‘in.

the service or pay. of the Government ¢ or remunerated, by fees or commission for the performance of any. public duty ‘and that such pay or remuneration or, commission. must’ come from the Government’. it

. -was furth¢r held that: the’ context of the whole of the Ninth Clause, as

(2) [1973] 1 S.C.R. 313,

536°” : SUPREME ‘court REPORTS {1984} 2 8. GR.

remuneration orin respect of the performance of public duty.’ It was further held that the use of the word ‘officer’ read in the context of the

~. words immediately preceding the last part. wou'd indicate : that the.

‘remuneration’ contemplated was remuneration by Government. The High Court further held that the amendment made in 1964 and in particular the addition of the words ‘by the Government’ in sub-cl (a) of clause Twelfth showed the legislative interpretion of the niate- rial 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 reasorting of the High Court does not suffer fromany imfirmity. It would transpire that payment

“by the Governmént was implied without the use af the cxpression, by the Government in cl. 9. The words ‘by the Government’ are added - in el, , (12)(a) amennded. This apparently does not make any difference.

It would therefore necessarily follow that the amendment of cls (9) . and (12) did not bring about afy change i in the coverage and construc-.

~ tion of the two clauses prior to and since their amedment, 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 ande onverage of exprisstion public servant remains unaltered and hance, M. L.A. is not a “public _ servant’ comprehended in cl. (12){a). Thus looking to the history and

- evolution of Sec, 21 as traced, it is clear, that-till 1964 M.L.A. could” not have bzen conceivably comprehended in expression ‘publice ser- - vant’ andthe law did not undergo any change simce the amendment.

©n the contrary, the, recommendation of the Santhanam Committee .

which recommended inclusion of Ministers and Parliamantary Secre-

_ taries but not of M.L.A separately recommended a code of conduct. ' .for M.L.A for seving them from the spectre of corruption would clearly and unmistakably show that till 1964 M.L.A. was not comprehended in expression ‘public servant” in Sec. 21 IPC and the amenment by Amending Act 40 of 1964 did not bring about the slightest change in this behalf concerning the position of M.L.A. Therefor,, apart .

ftom anything else,.on historical evolution of Sec, 21 adopted as an external aid to construction, one cin confidently say ‘that M.L.A.

was not and is nota ‘public sérvant’ within the meaning of ‘the expression in any of the clauses of Sec, 21 IPC,

"Assuming that i it would not be legally sound of correct according ' to well—accepted canon of. construction of a statute to construe Sec. : 21 (12)(a) by mere historical evolution of the seetion and the consti~ tutionally valid approach would. be to look at ‘the language em-

Sec. 21 (32) (a) by mere historiéal evolution of the section and the . constitutionally valid. approach would be to look at the language €m- ployed in the section and upon its truc construction, ascertain whether MLL.A. is a public servant within the meaning of the expression In that sub-clause. The learned special Judge held that M.L.A. is a public servant because he is, either in the pay of the Government or is femu- nerated by fees for the performance of any public duty by the Govern- | ment,

"KX person would be a public servant under cl. (12) (a) if @ he is

. ia the service of the Government; or (i1) le isin the pay of the Government; or (iii)-he is remunerated by fees or commission for the perfor- mance of any public duty, by the Government.

On. behalf of the complainant-appellant, it was contended that in order to make a persona ‘public servant on the ground that

. ke is in the pay of the Government, there. must exist a master-servant relationship or a .command-obedience rélationship, and if these. - elements are absent even if a pérson isin the pay of the Government, he would not be a public servant. On behalf of the respondent, it was countered asserting that the concept of master servant relationship er command—obedience relationship is comprehended in the first part of cl. (12) (a) which provides that évery 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 relation- ship, the Legislature- would be guilty of tautology and the disjunctive .

‘or’ would lose all significance. The use ofthe expression ‘or ’ in the context in which it is found in cl. (12)(a) does appear to be a disjun- ctive. 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 fearned special Judge; (i) a person in. the service of the Goversiment;

(ii).a person in, the pay of the Government; and (iii) a person remune- - tated by fees ot commission for the performance ‘of any public duty — y the Government. One can be in the service of the Government and

- may be paid for the same. One can be in the pay of the Government without being in the service of the Government in the sense of manifes- ting master-servant or ‘command-obedience relationship. The | wse of the expression ‘or’ does appear.to us to be a disjunctive as con~ tended on behalf of the respondent. Depending upon the context,

»

RS. NAYAK ¥. AR. ANTULAY (Desai, J.) 537

>: i woé

F-

é -

538 oe SUPREME COURT REPORTS. + [1784], 2.8.0R, 7

‘or’ "may ‘be read as ‘and? but the court would not do it unless it is ‘so obliged because ‘or’ does not gen® rally mean ‘and’? and ‘and’ does not generally mean ‘or’. (See Green vy. Premier Glyrhonwy Slate Com- ‘pany Ltd. Babu Manmohan Das & Ors. ¥.. Bishun Das,’ Ramta _ Prasad Azgarwal ete..v. Executive Engineer, ' Ballabgarh & Anr.® and serveral: others which we consider’ it unnecessary to enumerate here, a me,

" Once it is accepted that ‘a person in the pay of the Government’ connotes a specific-and independent category of public servant other — than’ a person in the’.service of the Government’ does not inhere a masster-servant. of ‘command-obediencé . relationship: between the Government .as the payer and the public servant as sthe paycte,+no-

~ part of the section is rendered superfluous. Each part will” receive its

"struction are (i) ‘in’ the pay. of’ and (it) ‘Government’..

own construction. We therefore consider it unnecessary to refer to those’ decisions, which were cited on behalf of the respondent that the correct canon of construction to- be adopted in such a situation is that effect must be given, if possible; to the words used in the statute, : for. the Legislature i is deemed not to waste its words or to. Say! anyting in vain. ;

What ‘then { is “the true interpretation of the expression ‘ ‘in the pay of the Government’, In other words, is M.L.At a person ‘In the pay of the Government’ so as tobe public. servant within the meaning of

» the expression in Sec, 21 (12) (a). The expressions that’ call for con- |

~

“Att 195 of the Constitution provides that! Members of the Legis- “lative Assembly and the Legislative Council ofa State shall- be entitled to rectiye-such salaries and allowances as may from time to time be determined by the Legislature of the State by law and, until provision. in that respect is so made, salaries and allowances at such ‘rates and upon such ‘conditions as ‘were immediately before the commencement. _of the Constitution applicable in the case of members’ of the Legislative Assembly of the corresponding Province.’ Armed with this power,

. the Maharashtra State-Legislative Assembly lias enacted ‘The Mahara- stitra- ‘Legislature M2mbers’ Salaries and Allowances Act, 1956(Bombay ‘Act XLEX of. 1956)’. Sec. 3 (1) provides that ‘there shall be-paid to .

~ each me her t during the whole of. his term a of office a salary at the

(3) [1928] 1 K B. ‘561 at 568. (2) [1967] 1 8.C.R. 836 at 83% * (3) [1974] 2 S:C.R, 827 at 830.

"ORS. NAYAK 9. AR. ANTULAY Desa, Do ne , 509 - rate of Rs. 450/-per month’ and sub- sec, (2) provides that “there shall be paid fo each Member during the whdle of his term of office per

"month a.sum of Rs, 400/- as a consolidated allowance for all matters

Ad

- ‘not specifically providedf or by or 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. SAC 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 t, 1981 at the rate of Rs, 300 per

_ month to every ‘person who has s:rved as.a Member of the State Legis-

_ lature. for a term of 5 years subject to other conditions. prescribed in _the section. There is.a similar Act which makes provisions for salaries and allowances of: the Ministers of f Maharashtra State,

“Undoubiedly, M.L.A. receives a salary and allowances in “his capacity as M.L.A, Doés it make him-a person ‘in the pay of the-Government’? Our attention has been drawn to the meaning of the word — “pay? in. different dictionaries and to the decision in--M. Karunanidhi v. Union of Inda™) wherein after ascertaining the nieaning of the ' word ‘ pay’ given in different dictionaries, the Court. observed ‘that : the expression ‘in the pay of? does not signify “master-servant relation- ‘Ship.. The’ word ‘pay’ standing by itself in open to vurious shades of « meaning and’ when the word is used in a parase ‘in the pay- of’, it is more likely ‘to have a different connotation: than. when standing by itself. Before referring to the. various shades of meaning set out in the dictionaries, it would be advisable to caution ourselyes. against

~. an unrestricted . reference to dictionaries. Standard dictionaries as

‘a rule give in-resp2ct of each woad as meanings. in’ which the word has cither been used or it is likely to be used in different contexts ~ and connections. Whilé it may be permissible. to refer to dictionaries to find out the meaning in which a-word is capble’of being -used or “understoad i in.common parlance, the well-known canon of construction should not even for a minute be overlooked that the meaning of the - -words and expressions used in a statute ordinarily take their colour ., from the context in which they appear. ‘In Dy. Chief Contr oller of ‘Imports & Exports, New Delhi v,R. 7. Kosalram & Ons:'2) this Court

" observed as under ;- Sat

* Wy 19791 3 SCR 254. - Be , ~ Q) [1971] 2°S.C.R. 507 @ 517, oo crt) fi

~540 + SUPREME COURT REPORTS [1784] 2 s.r.

“It is not always a safe way to construe a -statute ora contract by Aividing it by a process of etymological . * disszction and after separating words from their context to give each word some particular definition given by lexicographers and-then to reconstruct the instruments upon the basis of those definitions. What particular meaning should be. attached to words and phrases. in a given: instrument is usually to .be gathered from the context; the nature of

__ the subject. matter, the purpose of the intention of the author

~ - and the effect of giving to them one. or the other permissible me-aning on’ the. object to ‘be achieved. Words 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 considrration of the entire context. Bach 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 fitsi in with the context as intended to be conveyed © by the author”.

_ In State Bank of India: v. N. Sundara Money", Krishna Iyer, '§. speaking for the Court observed in his inimitable style that: ‘dictio- “nariés are not dicta tors 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 odinarily means ‘salary, compensation;

Wages or any amount. of money paid to the person who is described asin the pay of the payer’. Serious exception was taken on behalf of the a ppeallant, that-no canon of construction would permit picking out. shades of meaning of word ‘pay’ and then read the phrase ‘ in the pay of’ as synonymous with the word ‘pay’. On ‘the other haiid, it. was | asserted that the point is concluded by the cbservation of the Cerstitu- tion Bench that ‘so far as the second limb of the clause, ‘in the pay ef.

the Government’ fs concerned, that appears to be of a much wider amplitude so as to include within its ambit even a public servant who

“() 11976] 3 SER. 160.

y through. Fazal Ali, J. observed as under at page 282:

~° RS. NAYAK ¥. A.R. ANIULAY (Desai, J) > 541 pay Of the other person anb yet there may not be a-master servant

- rélationship between them. The court did not ascerizin the meaning - _ascribed, to phrase ‘in the: pay of? in. different dictionaries. The phrase

‘in the pay-of’ would ordinarily import the element of employment of

- paid employment or employed and paid by the employer. In Concise _ Oxford Dictionary, 7th edition at page 753,. the meaning assigned. to the’ expression ‘in the pay of? is ‘in the employment of’. In New . -

Collins Concise English Dictionary at page 831, ‘in the pay of ‘carries one meaning as ‘one in paid employment’. In Websters New World

Dictionary, the phrase ‘in the pay of’ carries the meaning’ ‘employed. and paid by’. Relying on all these shades Of meaning: it was urged .

that the phrase ‘in the pay.of’ does-necessarily import the element of master-servant relationship and iis absence cafnot be countenanced. It was submitted even if. A is paid by Ba sum styled as pay unless B

‘is servant of A, it cannot b? said that B.is in the pay of A. We see force in this submission. However, it is not implicit in the expression between payer.and payee. Oe can be in the pay of another without being in employment or service of the other. We are not inclined to * accept the submission that ‘in the pay of’ must in thé context,-imply master-servant relationship for the obvious reason that the court has to construe the phrase ‘in the pay of’ in its settirg where it is preeeded by the expression ‘in the service of the Government’ and succeeded

-by the expression ‘remunerated by fees or commission for the prfor-, mance of any public duty by the Government’. The setting and, the context are very relevant for ascertaining the true meaning of the expression. In order to avoid, ths charge of tautology, the phrase-‘in the pay of the Goverhment’ 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-ser- . vant relationship between the prson receiving the pay and the Government as payer. .

. ay ‘ ft was however, contended that the question whether a person ‘in the pay of the Governmnt’ is ipso facto a public servant is no more

_res integra and concluded. by the decision of the Constitution Berich + in Karunanidhi’s case? In ‘that case before adverting to the dictionary meaning of the expression ‘pay’, the Constitution Bench speaking

- Lf gt on

«We are of the opinion. that so far as the sccond limb <in the pay of the Governments’ is concerned, that appears to be of”

in’ ‘the pay of? that there. ought to exist a’ master-servant ‘relationship,

: 542 ee SUPREME COURT REPORTS - [1784]. 2 $.0.R:

“We tre of the. opinion: that so far as the second timb ‘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. -.- '. public servant who may not be a regular employee Teetiving salary from his, master”’,

The Court further observed that “thie expression ‘in: 1 the pay of”

connote that a person is getting salary, compensation, wages or any -

_. amount of money. This by itself however, does not lead-to.the inference _ that a relationship of master.and servant must necessarily exist in all _ cases where a person is paid salary’. We are.a'sé of the opinion that the phrase ‘in the pay of.the Government’ does not import of necessity

-a master-servant relationship. It is perfectly possible to say that a person can be in the pay of the Government if he is paid in considera- without there necessarily being a master-servant relationship. between them, It is not unusual in common parlance -to speak. of a person being in. the pay of another if he is paid for acting at the behest or according to the desire of the other without the other being his master and he the servant, that is to say without the control over the manner - of doing the work which a master-servant relationship implies. It is

- . such a catégory in addition tothe one ‘in the service of the Government’ that is sought to be ‘comprehended in cl. (12)fa). In respect of the extracted. observation of the Constitution - Bench, there ‘is no attempt’

to distinguish the dicision in -Karunanidhi’s case and therefore, tt is .

~ not necessary to censider the: dicisions cited in ‘support of the submis- _ -Sion that a judgment of the Supreme Court sespecially of the Constitu- . '. ‘tion Bench cannot ‘be distinguished lightly and is binding on us and - unless questions of fundamental importance to national life are in-

-volved, need not be by us. We must however point, out that the ratio

" tion of discharging an assignment éntrusted to him bv the Government ~ of the dicision in Karunanidhi’s case is not what is extracted herein-.

fey, That a Minister is appointed or dismissed by, the ; _Goverior and is, therefore, subordinate to him whatever be. the. , nature: and status of his constitutional functions.

2. -That a Chief Minister, or a Minister gets salary for.

the public work done or the’ publi ic duty - performed by him.

3. That the said salary As paid to the Chief. Minister .

er the Minister from the Government funds’’.

before but the ratio is to be found at page 290 where the Constitution - Bench’ held ‘the Chief Minister to be a public servant as comprehended, . incl. (12)(s) of Sec, 21 on the finding: | a _ «« a,

RS. NAYAK ¥. A.R. ANTULAY (Desai, J.) 543

Tt 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 s¢ servant but that does | not: conclude the matter. a

‘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 rele-

_vant statute, is he in the pay of the Government’? In other words, what does the expression ‘Government’ connote?

There is a shoit and a Jong 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

“ef th Code in conformity with the explanation’. Let it be noted that ualike the modern statute Sec. 7 does not provide ‘unless the context otherwis? indicate’'a phrase that prefaces the dictionary clauses of a moder statute. Therefore, the expression ‘Government’ in Sec. 21 (12)(4) must either mean the Central Government or the. Government ofa S:ate. Substituting the explanation, the relevant portion of Sec. 21 (12) (2) would read thus: ‘Every p<rsonin the pay of the Central Gverament or the Government of a State or remunerated by fees

" or commission for the performance of any public duty by the Central

Government or the Government of a State’. .At any rate, the Central Government is out of consideration. Therefore, the question boils down to this:'whether.M.L. A. is in the pay.of the Government of a- State or'is remunerated by fees for the performance of any public duty by the Government of a State ? ;

“In the debate between the Presidential form-and Parliamentary form of democracy, during the early days of the Constitutent Assembly, the balance tilted in favour of Parliamentary form of Government. Mr. K. M. Munshi, oné of the members of the Drafting, Committee spoke in this connection as under:

‘“We must not forget a very important fact that, during the last hundted years, Indian public life has largely drawn upon the traditions of British Constitutional Law . Most of us have

«544 - . SUPREME COURT REPORTS —>_[ 1984] 2 scr.

A looked: up to the British model as the, best: For thé Jast thirty or forty years, some hind of responsibility has been introduced . in the governance of the country. Our constitutional traditions have become parliamentary and we have now all our Provinces i functioning more or less on the British model.”

a Constitution Bench of this Court observed as under: “Our Constitution, though federal in its structure, is modelled on the British Parlaiamentary system where the execu- ~ .tive is deemed to have the primary responsibility for the for- Cc _ mulation of goveramental policy and its'transmission into Jaw though the condition precedent to the *xercise of this responsibi- lity is its retaining the confidence of the legislative branch of the State”.

Tt was “further observed that “Gn the Indian Constitution executive D asin England and the Counci! of Ministers we-have the same system .

of parliamentary consisting, as it does, of the members of the legislature js. like the British Cabinet, ‘a hyphen which joins, 2. buckle which fastens the legislative part of the State to. the executive part”, -In Shamisher Singh & Anry. State of Punjab®, a seven E Judges Bench unanimously overruled the derision in Sardari L al Vv. Union of India and Crs. and held that ‘our Constitution embedies generally the Parliamentary or Cebinct 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 mod2l, the executive, legislature and judiciz! powers

F are in the main entrusted to separate instrumerts of the Stz te. It is not for a moment suggested thatsthere is strict or water-tight 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 pcwers in tre Westminster Medel have

G _ been adverted to, It reads as under:

4 - . “It is clear that + the powers of go%ernment ate civided, + The executive, legislative and judicial powers are in the main

H §@® (See Constituent Assentbly Debates, Vel. VII p. 984) . . (2) {1955] 2 S.C.R. 225 at p. 236.

(3) 11975] 1 S.CR. 814.

(4) 1971] 3 S.CR. 461,

: : e N :

In Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab x

¥

OR! NAYAK PAR. ANTULAY (Desai, J.) ° 545 entrusted to separate instruments of the State» and local government is further administered separately. Thus the original conc2atration of power in the Soveréign no longer exists; in the Cigthteenth century this division of the powers of government 22m Mbeto. b2 such an essential caaracteristic of the English Con-.

* stitution that it was made the basis for the doctrine of separation of pow2rs. This doctrine, which is to the effect that in a nation © which has political liberty as the dircct object of its constitution no one person or body of pzrsons ought to be allowed to control the legislative, extcutive and judicial powers, or any two of them, has never in its strict form corresponded with the facts of English government mainly because, although the functions and powers of government are largely separated, the membership of the, separate tastruments of state overlap. Only in orfe aspect of the coustitutior can it b> said that the doctrine is strictly adhered to, namely, that by tradition, convention and law the judiciary _ is insulated from political matters’.

Parliament that is the Legislature exercises control over the executive branch of the Government because it is a postulate of Parliamentary form of Government that Executive is responsible to the Legistature. In. other words.the Government of the country is controlled by a ministry and Cabinet chosen by the electorate which while remaining responsible to the electorate is responsible directly

- ta th: Legislature and such effective means of exercising control is that any expense from Consolidated Fund of the State must hive b22n earlier placed before the Legislature. In Halsbury’s Laws of Baiglaid, Fourth Edition, Vol. 34 para 1005, it is stated that Parliament extrcises control over the actions of the executive government:

“ and the administration of the laws it has enacted in various ways, one such beiag by the doctrine of the constitution by which supply is granted annually by the House of Commons and must receive legisla-

" tive sanction each year and the supply granted must be appropriated to the particular purposes for which it has been granted. It may also be noticed that the staff of the House of Commons is appointed. by the Ho5use of Commons Commission comprising the Speaker, the Leader of the House of the Commons, a member of the House nominated by the the Leader of the opposition and three other members appointed 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 f for laying before

’

546. _+ SUPREME COURT REPORTS —— [1984] 2 SOR. 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 thé 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 assémbly is called Legislative. Assembly. Att. 170 provides for members of the Legisla- ‘tive Assembly being chosen by direct election from territorial constituéncies in the State. Arts. 178 to 186 provide for officers of the State | Legislatures such as the Speaker and Deputy Speaker of the Legisla- _ tive Assembly and Chairman and Deputy Chairman of Legislative Council as the case may be, their powers, functions and their either vacating the office or removal from the office. Art. 187 (1) prrovides - that ‘the House or each House of the Legislature of a State shall have "a separate secretarial staff’. Marginal note of the article is ‘Secretariat of State Legislature’, Sub-art.(2) of Art. 187 provides that ‘the Legisla-° ture of a State may by Jaw regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State’, Art: 266 obliges the State to set up its Consolidated Fund. Art. 203 prescribes the procedure with respect to.estimates. The estimates as relate to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative*"Assembly but the discussion in the Legislature is permissible thereon. However, so much of the said estimates as relate to other expenditure shall be submitted in the form of demands ” for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any denfand subject'to a reduction of the amount specified therein. In, other words, Legislative Assembly has complete power of purse, Art. 204 casts an obligation to introduce a Bill to provide for appropriation’out of the Consolidated Fund of the Stat® of alt moneys required to mect—(a) the grarits so made by the Assembly; and (b) the expenditure charged on the Consolidated Fund of the State but not exceeding-in any case the amount shown in the statement previously laid before the House or Houses. A conspéctus of these provisions clearly indicate that the Legislature enjoys the power of |

RS. NAYAK v AR. ANTULAY (Desai, oe 847 purse, Even with regard to expenses ‘charged ‘on the Consolidated

Fund of the State to be set up under ‘Art. 266, an appropriation bill has to be moved and adopied, undoubtedly, thé same would be non-"

" votable. And it is not disputed that salaries and allowances payable to M.L.A. are not charged:on the. Consolidated Fund of the State. This probably is an emulation of the situation in England where salary * and allowances of the members of the Parliament are not charged on ‘the Consolidated Fund. As 4 - riecessary corollary, it would be a votable item. - ee

There thus i 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

7 ~enabling to pay to its membets salary and allowancts. And tlie members. a

_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 MIL.As. by a vote retained the fund ear- : _matked 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 ofthe State Governmént

_ because Legislature of a. State cannot be comprehended i in the’ expres- . * -sion ‘State Government’.

| This bedomes further clear from the provision ‘contained in Art.

12 of the Constitution which provides that ‘for purposes of Part IIE, _- unless the context otherwise requires, “the State” includes the Govern;

_ ment and Parliament of India and the Government and the Legislature of each of the States arid all local or other authorities within the terri--. . tory of India of under the control of the Government of fndia’. The - expression ‘Government and Legislature’, two ‘separate entities, are . sought to be included in the’expression ‘State’ which’ would mean that " otherwise they are distinct and separate entities, This conclusion.is further reinforced by the fact’ that the executive sets up its own secreta~ © riat, while Art. 187. provides for a secretarial staff of the Legislature urider the control of the Speaker, whose terms and conditions of the service will be determined by the Législature and not by the executive. ~~ . When all these aspects are pieced together, the- expression ‘Govern- ~ ment’ in Sec, 21 (12)(a) clearly denotes the executive and not the Legi-” ‘lature. MLL. A. is certainly not’ in the pay of the executive. ‘Therefore,

4800 SUPREME COURT REPORTS,

“the conclusion i is inescapable that even though M. LA. receives pay and allowances, he can not be’said to be in the pay of the Gove Trament: i.e, the executive. This conclusion would govern also the third part of *

> cl (12)fa) i.e. ‘remunerated by fees for performance of any pub'ic duty

_ Tather difficult to accept an undly vide submission.that M.L.A. isnot. .

by the Government’. In other words, M.L.A. is not remunerated by.

fees paid by the Government i 1.8, the £xecutive, po

'

Tt was also contended that M. LL.A. is not performing any public - duty. It is ‘not necessary to examine this aspect because it would be

‘performing any public duty. However, it is unquestionable that he is not performing any public duty either directed by the Gover riment or for the Goyérnment. He no doubt performs public duties cast on “him , _by the Constitution and-his electorate. He thus discharges | constitu- : tional functions for which-he is remunerated by fees under the Consti-

’ tution and hot bysthe Executive,

/

It was further contended thet ‘oa the analogy. of the decision in

7 His Majesty the King vy. Boston & Ors.,0 -M.L.A. would be a public

‘setvant. In Boston’s case, the allegation wes that Harrison and Mit-

_ chelmore paid to defendant Boston in his official capacity as a Member of ‘the Legislative Assembly of New South Wales and the fatter cor-" * ruptly accepted i in that capacity 4s inducement 'to him in viclation of -his official duty to. use his position as such. member; (a) to secure the acquisition by the Government. of, the State of New South Wales of .

certain estates ‘ind the payment ‘for such estates out of the public funds

[i984] 2 3 Sox.

‘of the State; and (b) to put pressure upon the Minister for Lands and - 4

‘other officers of the Crown to acquire and pay for such estates. The

‘contention was that the agreement between the. defendants mi ight have.

" been to pay money to Boston to induce him to use his positicn ex-

_. clusively 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 toa criminal offence, and that consequently the ‘information

\ is: bad. Néegativing ‘this contention, it was held that it is settled law. that an agreement or coinbination to’do an act which tends to produce a _ Public | mischief amounts ‘to a criminal conspiracy. It was further

(i) (192324) 33 Commonwealth Law Report 386 an

RS. NAYAK ¥..A.R. ANTULAY (Desai, J.) se 549

“held “by the majority that.the payment of money to,. and the receipt of money by, 4 member of Parliament to induce him to use his cfficial

- position, whether inside or outside Parliament, for the purpose of in- fluencing or putting pressure on a Minister or other officer of the Crown to enter into or carry oul a transaction involving payment’ of-money

‘out of the public funds, are acts tending to the public mischief; andan_. _ agreement or combination todo such acts amounts to a ‘criminal offence. The question has. been examined. in the light of the settled

- Jaw that an agreement or combination to do an act which, ténds to:

produce a public mischief amounts to a criminal. conspiracy. Isaacs-. ~

-and Rich, JJ posited the question: how fat’a member ‘of the Legisla- tive Ass¢mbly of New. South Wales. ‘can, without incurring any -real

- personal responsibility—that i is—other than’ political rejecti§n, —make his public position the. subject of profitable. traffic by engaging in depart?

‘mental intervention on behalf’ ‘of individuals in return for private pecuniary considération to himself ? The concurring judgment exami- | -

_ ned the general position of a member of Parliament and then proceeded to examine the special provisions of the releyant clause. On this point

. it was concluded that the fundamental obligation, ‘which is the key © to this case, 1s the duty to serve and, ‘in, serving, to act with fidelity. and with 2 single-mindediess for the wel fare of the community. It was *.

_ further observed that a member of Parliament is, therefore, in the highest sense, a servant ‘of the State; his duties are those appertaining - to the position, he fills, a position of no transient or temporary existence, a position forming-a recognized place ‘in the constitutional machinery of governrhent. If was also held that he holds an office.

In the third concurring judgment of Higgins,,J, while conceding that ‘the member of Parliament has to discharge ‘a duty in which the public is interested, but after examining provisions of the public Service Acts, it was held that heis nota public officer within the meaning of that Act

-because he is not required to obey the commands of the King or of the departmental heads. It was, however concluded that as.a member

_ of Parliament; lie holds a fiduciary relation towards the public, and that is enough. The minority judgment of Gavan, Duffy and Starke, JJ. clearly proceeds on their holding that a member of Legislative Assembly of New South Wales is not the holder of a public. office within the

“meaning. 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 i imptoper they may be,’ would not Be mal- * yersation. in his office ot 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

. ‘oy « '

550 "SUPREME COURT REPORTS oS sesh 2, son

. concept of common: law and some of the ‘statutes as prevailing in.

Australia would not be very helpful. It may bé mentioned while. com- a paring’ M.L‘A. and M. P. in India with M.P. in UK. that the MP. in’ | “ * UK. is neither covered by the Prevention of Corruption Act, 1906 nor.

the Pr evention of Corruption Act, 1916. It may also be menitioned -

.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 Par- ‘liament, 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 privilege. 0) Attempts to bring M.P. in U.K. either ~ > under the provisions of the Prevention of Corruption Act or the Public

' Bodies Corrupt Practices Act have not-met with success. Even such modicum of. decency in public life as disclosing relevant, pecuniary interest or benefit of whatever nature whether direct of indirect that’

~ he may have had or may be expecting to have while participating in adebate or proceeding in House by M.P. in U. K. was “stoutly resisted -

_ in 1974, But Paulson Affair stirred many and Royal Commission on

Corription in. Public Life headed by. Lord Justice Salmon was set up.

Tlie Commission inter alia recommended i in 1976 that M.Ps. should be 7 .

oo brought within the scope of the corruption laws regarding their actions | “inside as ‘well outside Parliament. No follow up legislative action - appears ‘to have been taken since then.

' ‘

If M, LA i is not in the pay of the Government iin ‘the sense - of

Executive government or is-not remunérated ‘by fees for perforsnance ™ of any public duty by the Executive Government, certainly he would not be comprehended in the expression ‘public servant’ within, the.

‘meaning of the expression in cl. (12) (a). He is thus not a public servant _ Within the meaning of the expression in cl. (42) (a). ‘This conclusion ~~ reinforces the: earlier conclusion reached by us. after examining. the - historical evolution of cl.:(12) (a).

"enn ma : . : . : : ‘oe . , - ‘ (i) See Earsking May Parliamentary Practice 20 edition, page 149.

Mr. Singhivi, Jiowever’ strendusly contended that McE.A. would be comprehended in cl. (3) or cl. (7) of Sec. 21 IPC to bea public servant

He went so far as to suggest that, his emphasis would have been more ; .on cl. (3) comparatively and not on cl. (12) (a). ‘Therefore, it may now ‘be xaniined whether M.L.A. is comprehended either in al. ~~ or él, ).. ' of Sec. 21 IPC. mo t f a!

™

- for, the time being in force’. At the Bill stage, the clause was recast -

RS. NAYAK. AR, ANTULAY, (Desi bY . “4. 51. vs

"Re (2): Cl. (3) of See. an, as it at present Stands, takes within its purview ‘every Judge. including any person. empowered by law to dis-. '. charge whether by himself. ot as a-member of any body of persons, any adjudicatory. functions. Prior to its amendment by Act 40 of 1964 the cl. (3) read simply ‘Every judge’. Cl. (3) was’amended to read,

-. ‘asitat ‘present stands, pursuant to, the recommendations of the Santha-. nam Committee. In Para 7.6 of the Report, it was recommended that | _ ‘a further category should-be added to include all, persons discharging

-adjudicatory: functions under,any Union or State Law for the time ‘peing in force’, . With this end in view, . the Committet recommended, that cl. (3) should read: ‘Every: Judge including any person ‘entrusted.

with ° adjiidicatory- functions in the course of enforcement of any law so as to give-full effect to: thé*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 de efinition’ of public servant in Sec..21 of the Indian, ~ Penal Code i is proposed to be amended 'so as to bring within ‘its purview ' eértain additional” categories of persons such as ‘persons performing. _adjudicatory functions under any law, liquidators, receivers, commis- ~ sioners etc.’ If we recall, the earlier discussion about the history of | _ evolution of cl, (12) (a) and the: entire range of tecommendasions 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 80 as to clothe him with: the: status of a public servaiit,

Independent of this historical evolution and focussing attention

. on the language of cl. (3) it is difficult to hold that M.L.A. as a member of. a body of persons such as the Legislative Assembly performs any adjudicatory functions empowered by law’ to discharge that function. In fact, Santhanam Committee contemplated covering such officers

_ like. liquidators, receivers, commissioners etc. each of whom-is em- powerd by different statutes to discharge such adjudicatory functions “as prescribed by the concerned law. Log

It was: ‘how2ver, contended that expression Judge’ has. been a defined in Sec, 19 IPC to denote ‘not.only every pérson who is officially eo designated as a Judge, ‘but also every prson who is empowered by law -

_to give, in any legal proceeding, civil or criminal, a definitive judgment, °or a judgment which, if not appealed against, would be definitive, or ©

-a judgment, if confirmed by some other authority, would be definitive, oh a ae . . - , L .

Bo

¢

~.

« ”

552 an ‘ SUPREME COURT REPORTS ‘ [1984] 2 “os ot Wiois one of a body of persons, swhich*body of pers sons is empower ed by Jaw ta give such a judgment’, ‘and i in ¢]. (3) this definition cannot be substituted because it is en inclusive definition which meahs it is extensive in character, Accepting the position that. inclusive, défini-

_ tion exténds the specific meaning of the expression which it would not | otherwis2 bear, it is necessary to ‘determine whether this extension of

* the expression ‘Judge’ is” 50" wide as to cover within _ its umbrealla M.L.A. on the ground: that while‘ voting upon .

a motion for breach of privilege’ or for contempt of the House, he is

‘discharging adjudicatory functions: and: that, he is so empowered by |

~ Taw to do so. When with the perinission ‘of the Speaker, a motion for breach of privilege is moved in: the Legislative Assembly or a- -motion for taking action for co:.tempt of the House is moved, undoubtedly, :

every member of the’ House has a right to participate ‘and after the - motion is debated upon, the majority” vote is recorded. as a decision. of the House. Does that make ML, A. @ person as a member of a body :

_ persons: “who discharges adjudicatory functions? The “definition of :

expression ‘Judge’ comprehends, adjudication in any legal proceeding, civil or criminal and in which the, person as a Judge is empowerd to _ give a definitive judgment. It is difficult to accept the“submission that the proceedings before the House either upon a motion for breach of ° privilege or for contempt is a civil of criminal proceeding, as these . terms ordinarily coanote,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 haye beer violated. ‘The House has the poweg to punish for contempt’ and | -‘the penal jurisdiction of the House is not confined to their own Mem-- pers nor to offences committed in. their presence, but extends to all ; contempts:of the Houses; whether committed by Members or by per-

- sons who ‘are not Members, irrespective of whether the the. offence is ‘committed within the House or beyond its walls’. (See Earskine May _ Parliamentary Practicé 20 ed. p.- 122). This power ‘of commitment is truely described as a key-stone of Parliamentary, Practice. Jt was "pointed out that ‘the origin of the power which is judicial in ‘its nature is‘to be. found naturally in the medieval: coriception of. Parliament as primarily a‘court of justice—the High Court of Parliament’ (ibid ‘page © 424). It is however, difficult to say'tiat a State Legislature functioning 7 " under ‘our Constitution can be described as High Court of Legislative

Assembly, In blindly tailoring our Constitutional Law to the Parlia-: mentary Practice in U.K., one is:apt to overlook the obvious fact

“ that House-of Lords always possessed the judicial power as any. Court. - of Westminster Hall, (ibid Pp. 124). In this connection “in Special ron

» .

RS. NAYAK ¥, AR, “aNTULA (Desa, Js ) —- 5§3-

Ref No.1 of 1964,0). it was clearly stated, that the: result of the Pprovi-

' Sion contained in the latter part of Art.- 194(3) was not.inténded to be conifer on the State Legislatures in India the status of a superior Court of Record. It-was ‘farther observ: cd. that ‘che House and - indeed, all and their historical and constitutional background does not support the claim that they can‘be regarded as Court of Record in any sense’, Undoubtedly, the Le gislative Assémbly i: in view of the provisions con- tained in Art. 194(3) has the power to inflict punishment for breach . ‘of privilege and for contempt of the House. And when a notion is. moved ‘complaining breach of privilege or for taking action. for the .

contempt ofthe House, the members would participale ii the debate,

- analyse evidence and absence thereof in support of the motion and against the. motion and ultimately decide as a body by a° democratic

* process whether the motion is affirmed or rejéctec., The ,question is whether'this process.can be styled asanadjudicatory pr ocess discharged : ~ by-M.L.A. as empowered by law. If the expression ‘law’ were to in- clude the Constitution; certainly this power is enjoyed by M.L.A, but expression ‘law’ ordinarily*does not include the Constittion. Art.

Legislative Assemblies in India neyer discharged ainy judicial functions .

13(1) of the.C pnstitution provides that ‘all laws in force in’the ter ritory | - of India iinmediately beforé the commencement, of the Constitution, in so far as they are consistent with the provision of Part ITi shall,

-to the extent of inconsistency be void.’ Sub-Art. (2) i imposes a restric-. tion on the legislative power of the State to make any law whih takes:

away or abridges the’ rights conferted by Part ill and any law made in contravention of sub- -Art (2) shall; to the extentS of the contraver tion, be void ‘Expression ‘law’ as.used here would.be law other than.

Constitution, in other words, law enacted in exercise of the legislative power. The majority view in I. C. Golgknath v. State of Punjab,2)’— that amondment of the Constitution i is part of the fegislative process. does

‘not survive as valid any longer because it was admitted that Constitu- tion (Twenty Fourth) Amendment Act, 1971 in so-far as’ it tansfers 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 |

Sripaganaga galavary y. State of Kerala and another ®) shows. that ‘when the power amend the Constitution is exercised by Parliament,

(1) [1965] 1 SER. 413 at Pages 490, 491 and 492. (2) [1967] 2 S.C.R. 672. - ‘ : ' (3) [1973] Suppi, S.C.R. 1.- .

trend of discussion in various judgments in H.H. Keshvnand ‘Bharathi’ ,

. it exercises Constituent power and this i is independent of the: oridinary

$54. °° SUPREMB CoURT REPORTS ~- [1984] -2 scr. A -- Iegislative 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 Cnstituttion.’ A: passing reference may

- alSo be marl 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 refére to the Constitution and the laws.

‘Participation it 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 ~ c- ‘ . by law. Viewed from this angle it is not necessary to examine the.

contention that adjudication and 4 resultant judgment. presupposes a lis between persons other than adjudicator, and M.L.A. has - no fis before him as a body of persons when passing upon the motion for ve . contempt or breach of privilege. Accordingly the sumbission that. «the accused would be a public servant within the meaning of the ex-

"Pression in cl. - @) of Sec. 21 IPC must be rejected. .

“which takes within its ambit ‘ every person.who holds any- office by virtue of, which he is empowered to place or keep any person in confi- -

“ nement’.’ This limb of the submission was not placed for consideration ” of the learned trial Judge. And it has merely to be stated to be rejected.

We, however, did not want-to reject. it on this narrow ground. Expand- +

«ing this contention, it was urged. that M.L.A. is empowered to adjudge ra person guilty of breach of privilege or contempt of the House and when prison sentaence is imposed to: keep him in confinment. Assum-.

ing for the purpose of this argument that M.L.A.. holds an, office, is he a person empowered to place or. keep any person in confinement.

Power, to impose punishment i is independent of the power to keep a

: person in confinement, First is the power to impose a prison sentence.

but second is the power flowing from the execution of the sentence to € place or kéep any person in confinement meaning thereby, there is _. an execution: of warrant. Persons whose duty it is.to deprive a person free and to keep or place him in confinement. in die.execution: of the warrant would be comprehended in cl. (3). It is difficult to accept the

The last fimb of the’ submission was that at any rate, ‘the accused - ", would be a public servant within the meaning of cl. (7) of Sec. 21 IPC,.

directed to be imprisoned td - deprive him of his liberty to remain ~

H *_ submission that M.L.As.as‘a body can keep or place: any person in.

confinement, Reference was, however, made to some of the passages

Rs. NAYAK v. AR. ANTULAY (Desai, 7) - 555.

? + in Parliamentary: ‘Practice: by Earskine May, 20th Ean. “as “also to . : Practice and Procedure. of Parliament, Third Edition by Kaul and. . Shakdher, p.'208.. The authors. observed ‘at page 208 that ‘each House . - of the Legislature of” ‘State, has the power to secure the attendence of » petsons ¢ on’ matters of privilege and to punish . for breack of privilege or contempt of:the House and commit the offender to custody or-pri+ , son’, At page 212; it is observed that ‘each House has the power to enforce its -orders including the powér for its officers to break open the doors of ‘a house for that purpose, when- necessary, and execute - its warrants in connectidn with contempt proceedings’. We fail to see

-. how these observations assist’ us 1 understanding the expression ‘em powered to place or keep any person in confinement.’ Broadly stated, ¥ a 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 arid 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 Janguage lowering him. in status. Additionally, cl. (1) does not speak of any adjudicatory function. It

7 ‘appears to comprehend situations where ‘as priliminary 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 confinement. The decisions in Homi_D. Mistry y. Shree -

Nafisul Hissan & Ors. a , Harendra. NathBarua vy. Dev Kanta “Barua & Ors.) and Hdward Kelley y. William Carson, John Kent & Ors.2

' -shardly shed any-light on this’ aspect. Therefore, the submission that M.L.A, would be comprehended in cl. 2 of. Sec.-21 so as to bea public servant must. be: rejected.

al ‘

Having. me tichtousty examined the submission: from - diverse . -angles as.presented to-us, it appears that. M.L.A. is not a: public ser- | vant within the meaning. of the ‘expression in ‘cl. (12)(a), al. Ba and cl. ch.

..of Sec. 21 TPC. po,

Re: ify. &. (2) : “ete ned Judge’ after “recording a finding:

- that-M.L.A. is a public servant within the comprehension of cl, (12)(a)

and further recording the finding that as on the date on which the Court -

“(1) ILR 1957 Bombay 218 {2) AIR 1959 ‘Assam. 160." . so — 3) (184 -42) 4 Moore Privy Council Cases 63, wl oo, .

556 “SUPREME COURT REPORTS [1984] 2. SCR.

_ was invi ted to take c cognizance, the accused was thus a public servant

. proceeded to examine whether sanction under Sec. 6 of the 1947 Act isa pre- requisite to taking cognizance of offences enumerated in

Sec. 6 alleged to have been committed by him. He reached the con- - clusion that a sanction is necessary before cognizance can be taken.

As a.corollary. he proceeded to investigate and identify,*which is the

_ Sanctioning authority who would be able to give-a valid sanction as required by Sec. 6 for the prosecution of the accused in-his capcity as M.L.A:? We have expressed, our conclusion that where ‘offences ° as sct out in Sec. 6 -are alleged to have been committed - by a public © servant, sanction of only that. authority would be necessary who-would be ‘entitled to remove him from that’ office which is “alleged to have been misused or abused for corrupt motives. If the accused has ceased to hold that office by the date, the court is called upon to take cognizance of the offences alleged to have been committed by such public’

servant, no sanction under Sec. 6 would be necessary despite the fact that he may be holding any other office on the relevant date which may make him a public servant as understood in Sec 2, if there is no allegation that office has been abused or misused for corrupt motives.

The allegations in the complaint are all to the effect thatthe accused _ misused or - abused his offie 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 cffice 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. the ‘accused -‘would be a public servant under Sec. 21, in the absence of any allegation that he misused.or abused his office as M.L:A. that aspect becomes immaterial, Further Sec. 6 postulates existence: of a valid sanction

‘for prosecution of a public servant for dffences puntshable 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 expres- .

sion in Sec. 21 TPC, no sanction is necessary to prosecute him fir the offences. alleged to have been committed by him.

Tn view of the canclusions reached by us, we - consider it unneces- .

' sary 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 a* vr ah

+. > + RS. NAYAK ¥. ALR. ANTULAY, (Desai, J) | 557 in search of competent sanctioning authority. The vital question has .

~ become one of academic interest. We propose to adhere to the accumu- © 7 lated wisdom which has ripened: into a settled proctice of this Court: : not to decide academic questions. The question is-left open.

Before we conclude let it be clarified that more often i in the course of this judgment, we have used .the words ‘Office of M.L.A.’ It was

- debated whether the M.L.A. holds seat or office ? Our use of the cx-

. 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 - pression ‘office’ should not be construed to mean that we have accepted - that the position ‘of MLL.A. can be aptly described as one holding- ‘public o ce’ or ‘office’ for that mattér, |

To sum up, the learned. special Judge ‘was. clearly in error in 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.

HSK... | ~ Appeat allowed.

* ”

’ This ‘appeal. accordingly succeeds and is ‘allowed. The order

~~ and decision of the. learned Special Judge Shri R.B. Sulé 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 ihe trial - shall proceed further

_ from the stage where the accused was discharged

The accused was-the Chief Minister ofa 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. Neatly 24/ 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 Ayt. 21. Expeditious disposal of a criminal ~ - case is in the interest of both, the prosecution and the accused. There, fore, 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 learned Chief Justice to assign these two'cases ‘ta a sitting Judge of the: High Court. On being-so ‘assignéd, ‘the learned Judge may pro- 7 ceed to ¢xpeditiously dispose o of the cases preferably by holding the © trial from day to dav.