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SUPREME COURT OF INDIA
D.A. DESAI, R.S. PATHAK, O. CHINNAPPA REDDY, A .P. SEN AND BALKRISHNA ERADI, JJ.
R.S. Nayak Appellant
Versus
A.R. Antulay, Respondent
Criminal Appeal Nos. 356 of 1983 and Transferred Cases No. 347 and 348 of 1983
Decided on 16-2-1984.
AND
Padmakar Balkrishna Samant, Petitioner
Versus
Abdul Rehman Antulay and another Respondents.
M/S. Ram Jethmalani and P. R. Vakil, Advocates, Ms. Rani Jethmalani, M/s Mukesh Jethmalani, O. P. Malviya, Shailendra Bhardwaj, Harish Jagatlani, Advocates with them, for Appellant Dr. L. M. Singhvi, Sr. Advocate, M/s. Dalveer Bhandari, A. M. Singhvi, S. S. Parkar, H. Bhardwaj, U. N. Bhandari, H. M. Singh, Ranbhir Singh, Mr. S. G. Hasnain, Advocate with him for Respondents.
Mr. Ashok Desai, Sr, Advocate, Mrs. J. Wad, Advocate with him, for the petitioner in T. C, No. 348 of 1983; Mr. M. N. Shroff, Advocate for the State of Maharashtra, K.Parasaran, Attorney General, Ms. A. Subhashini, Advocate, Mr. Gopal Subramanian, R. N. Poddar and C. V. Subba Rao, Advocates for Union of India.
* Special Case No. 24 of 1983, D/- 25 - 7- 1983 (Bom.).
Question
Is the relevant date to decide question of sanction under Section 6 of 1947 Act, the date on which the court takes cognizance of a case? (Yes)
Held the terminus a quo for a valid sanction is the time when the Court is called upon to take cognizance of the offence. 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 no sanction would be necessary for taking cognizance of offence against him. (Para 17)
(ii) Prevention of Corruption Act 1947, Section 6 - Sanction from competent authority before public servant can be prosecuted -Indian Penal Code 1860, Section 21-Definition of Public Servant - In case before the Trial Judge the appellant contended that as he continues to hold the public office of M LA, sanction under Section 6 of 1947 Act is acquired from the authority who can remove him as M.L.A. This sanction is necessary even though he is not being charged for misuse of office of M.L.A. - Trial Judge accepted this contention and dismissed case - In appeal
Question
If an accused holds plurality of public offices but is being charged for misuse of only one of them; does Section 6 of the 1947 Act require that sanction for prosecution should be sought from all competent authorities entitled to remove him? (No)
Held the offence would be committed by public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. This is necessary as that competent authority alone would know the nature and functions discharged by public servant holding the office and whether the same has been abused. (Para 20)
Further held we fall to sec 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 coincide whether the prosecution is frivolous and tendentious. (Para 21).
Therefore hell the 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. (Para 23)
(iii) Indian Penal Code, 1860, Section 21l12)(a) - Public servant in pay of Government - Interpretation of statutes-Statute ambiguous are external aids to construction permissible.
Held the reports of the committee which preceded the enactment of a legislation, report of a commission set up for collecting information leading to the enactment are permissible external aids to construction. (Para 29)
(iv) Indian Penal Code, 1860, Section 21 -Interpretation with aid of external aids to construction - Trial Judge held that a M.L.A. is a public servant within the meaning of Section 21.
Question
Does a historical analysis of the section support such an interpretation? (No)
Held on historical evolution of Section 21 adopted as an external aid to construction, one can confidently say that M.L.A. is not a public servant within the meaning of any of the clauses of Section 21 Indian Penal Code.
(Para 37)
(For detailed analysis of historical material see paras 30-37).
(v) Indian Penal Code, 1860, Section 21(12)(a) - Trial Judge held an three clauses of Section 21(12)(a) to be read independently
Question
Are all the three clauses of Section 21 (12)(a) giving independent categories of public servant? (Yes) (Para 40)
(vi) Indian Penal Code, 1860, Section 21 (12)(a) - Trial Judge held that M.L.A. a public servant as he is in the pay of the Government
Question
Can it be said that a M.L.A. is in the pay of the government? (No)
Held even though M.L.A. receives pay and allowances he is not in the pay of the State Government because legislature of a State cannot be comprehended in the expression State Government. (Para 51)
Further held the expression Government in Section 21 (12)(a) clearly denotes the executive and not the legislature. M.L.A. is certainly not in the pay of the executive, therefore he cannot be said to be in the pay of the government.
(vii) Indian Penal Code 1860 - Section 21(3) - Person who performs adjudicatory functions is a public servant.
Question
Is a M.L.A. a public servant covered within the ambit of this clause? (No)
Held participation in a debate on a motion of breach of privilege or for taking action for contempt of the house and voting thereon is a constitutional function discharged by members and therefore, it cannot be said that such adjudicatory function if it can be so styled constitutes adjudicatory function by M.L.A. as empowered by law. Accordingly the submission that the accused would be a public servant within the meaning of Section 21(3), Indian Penal Code must be rejected. (Para 60)
(viii) Indian Penal Code 1860, Section 21(7) empowered to order confinement is a public servant.
Question
Can a M.L.A. be considered a servant coming within the conspectus of Section 21 (7) of Indian Penal Code? (No)
Held the expression empowered to place or keep any person in confinement comprehends Police and Prison Authorities under an obligation by law or by virtue of office to take into custody or keep in confinement any person. To say that M.L.A. by virtue of his office is performing policing or prison officers duties would be apart from doing violence to language lowering him in status. A M.L.A. is not a public servant within the meaning of Section 21(7), Indian Penal Code. (Para 61)
(ix) Indian Penal Code 1860 - Section 21 - Prevention of Corruption Act 1947, Section 6 - M.L.A. is not a public servant, is sanction under Section 6, 1947 Act required to prosecute him? (No) (Para 62)
Based on the provided legal document, the key points are as follows:
The relevant date for determining whether a sanction under Section 6 of the Prevention of Corruption Act, 1947 is required is the date on which the court is called upon to take cognizance of the offence. If the accused ceases to be a public servant before that date, no sanction is necessary (!) (!) .
A person holding multiple public offices does not require sanction from all authorities competent to remove him from each office for prosecution based on misuse of a single office. The sanction must come from the authority competent to remove him from the specific office that was allegedly abused (!) (!) (!) .
The offence of corruption is intrinsically linked to the misuse or abuse of the office held by a public servant. The power to grant sanction is vested in the authority competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motives (!) (!) .
The definition of a "public servant" under the relevant statutes includes persons in the service or pay of the government or remunerated by fees for public duties. However, certain categories, such as members of legislative assemblies, are not automatically considered public servants unless specific conditions are met—primarily, that they are in the pay of the government or performing duties for the government (!) (!) (!) (!) (!) .
The interpretation of whether a legislator, such as a Member of Legislative Assembly (MLA), is a public servant depends on whether he is in the pay of the government or remunerated by fees for public duties. Merely holding office or receiving allowances does not automatically make an MLA a public servant unless the relationship involves employment or payment directly linked to the government’s authority (!) (!) (!) .
External aids such as the historical evolution of statutes and legislative reports are permissible and valuable for interpreting ambiguous or complex statutory provisions, especially when the language of the statute is not clear or is susceptible to multiple interpretations (!) (!) (!) (!) (!) .
The legislative history and amendments to statutes, including the evolution of the definition of "public servant," indicate that certain categories, such as MLAs, were not initially included and only later, through amendments and reports, was their status considered in specific contexts. This historical perspective aids in understanding the current legal position (!) (!) (!) (!) (!) (!) .
The constitutional framework establishes a parliamentary system where the executive is responsible to the legislature, and the legislature exercises control over government functions, including the disbursement of salaries and allowances to members. Despite receiving remuneration, MLAs are not considered to be in the pay of the executive government (!) (!) (!) .
The powers and functions of legislative bodies, including their authority to punish for breach of privilege or contempt, are distinct from judicial or adjudicatory functions. Participation in such proceedings does not constitute discharging adjudicatory functions that would classify an MLA as a public servant under the relevant statutes (!) (!) .
The decision clarified that the position of an MLA does not inherently qualify as holding a "public office" or "office" in the constitutional or legal sense that would automatically render him a public servant. The absence of a master-servant relationship and the nature of legislative functions support this conclusion (!) (!) (!) (!) .
The Court emphasized that the primary objective of the relevant statutes is to prevent corruption and misuse of office. The interpretation of statutory provisions should advance this purpose, and external aids such as legislative debates and reports are legitimate tools to ascertain legislative intent, especially in cases of ambiguity (!) (!) (!) .
In cases where the accused has ceased to hold the office at the time of the court’s cognizance, no sanction under Section 6 is required for prosecution, provided that the offence was committed during the period when the accused held the office. The focus is on whether the offence involved misuse of the office while the individual was a public servant (!) (!) .
The legal interpretation supports that the mere receipt of salary or allowances by an MLA does not automatically establish that he is a public servant in the context of the statutes governing corruption and misconduct, unless the relationship involves employment or remuneration directly linked to the government’s authority or control (!) (!) .
The proceedings also highlight that legislative and constitutional functions, such as debating motions or voting, do not constitute adjudicatory functions that would make a member a public servant. Such parliamentary activities are distinct from executing judicial or administrative powers (!) (!) .
The judgment ultimately overturns prior conclusions that MLAs are public servants within the statutory definitions, clarifying that their role does not include performing functions that would classify them as public servants under the relevant laws, and that prosecution can proceed without the need for prior sanction if they have ceased to hold the office at the relevant time (!) (!) .
These points collectively clarify the legal principles regarding the status of MLAs as public servants and the procedural requirements for initiating prosecution under the relevant anti-corruption statutes.
JUDGMENT
DESAI, J. :— Respondent Abdul Rehman Antulay (hereinafter referred to as the accused) was the Chief Minister of the State of Maharashtra from 1980 till he submitted his resignation on January 12, 1982, which became effective from January 20, 1982. He thus ceased to hold the office of the Chief Minister from January 20, 1982 but continues to be a sitting member of the Maharashtra Legislative Assembly till today.
2. As the contentions canvassed before this Court are mainly questions of law, facts at this stage having a peripheral relevance in the course of discussion, it is unnecessary to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas Shrinivas Nayak (complainant for short) in detail save and except a few pertinent and relevant allegations. In the process the brief history of the litigation may also be traced.
3. 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 Section 6 of the Prevention of Corruption Act, 1947 (1947 Act for short) for various offences alleged to have been committed by the accused and neatly set out in the application. Complainant then filed the first complaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay on September 11, 1981 being Criminal Case No. 76 Misc. of 1981 against the accused and others known and unknown collaborators alleging that the accused in his capacity as Chief Minister and thereby a public servant within the meaning of Section 21 of the Indian Penal Code (IPC) has committed offences under Ss. 161, 165. I. P. C. and S. 5 of the 1947 Act, Section 384 and S. 420 I. P. C. read with Sections 109 and 120-B, I. P. C. 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 Ss. 161, 165, I. P. C. and S. 5 of the 1947 Act is maintainable without a valid sanction as contemplated by S. 6 of 1947 Act and ultimately held that in the absence of a valid sanction from the Governor of Maharashtra, the complaint filed by the complainant for the aforementioned three offences was not maintainable. The learned Metropolitan Magistrate accordingly held as per order dated October 6, 1981 that the complaint was maintainable only for offences alleged to have been committed by the accused under Ss. 384 and 420 read with Ss. 109 and 120-B of the I. P. C. and directed that the case be fixed for examining the complainant as required by Section 200 of the Cr. P. C. The complainant questioned the correctness of this order in Spl. Criminal Appln. No. 1742 of 1981* filed in the High Court of Judicature at Bombay.
#Reported in ILR (1983) Bom 2098
4. In the meantime, another development 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 Petn. No. 1165 of 1981## in the High Court of Judicature at Bombay challenging the method of distribution of ad hoc allotment of cement in the State of Maharashtra as being contrary to the rule of law and probity in public life. The accused was the second respondent in this petition, the first and third respondents being the State of Maharashtra and Union of India respectively. By an exhaustive speaking 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 single Judge who by his judgment dated January 12, 1982 made the 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.
## Reported in (1982) 1 Bom CR
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