JUDGMENT

SAWANT, J :—Leave granted.

A common question of law, viz., whether sanction is required for launching a criminal prosecution against the appellants, has been raised in these appeals.

2. The Orissa Special Court Act, 1990 (hereinafter referred to as the "Special Courts Act") which came into force on 27th July,1992 after receiving the assent of the President, provides for constitution of special Courts of offences and for the confiscation of property involved in such offences. Section 2(d) of that Act defines "offence" to mean an offence of criminal misconduct within the meaning of clause (e) of sub-section(1) of Section 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act"). Section 5(1) of the Special Courts Act, as amended by the Amendment Act of 1993 reads as follows;

"5(1). If the State Government is of the opinion that there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion".

Rule 2(1)(f)(i) of the Orissa Special Courts Rules (hereinafter referred to as the "Rules") reads as follows :

"2(1)(f). "Person holding high political office" includes -

(i) members of the Council of Minister and the Chief Minister".

3. Clause (e) of sub-section(1) of Section 13 of the Act defines "offence of criminal misconduct" as follows :

"13, Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct -

x x x x x x

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful sources and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

It is not disputed that all the appellants were Ministers in the Council of Ministers of the respondent-State of Orissa during the period in which they were alleged to have been found in possession of pecuniary resources or property disproportionate to their known sources of income. Subsequently, they ceased to be Ministers due to the change of Government and thereafter were elected as the Members of the Legislative Assembly of the State ("MLA" for short). They continued to be such Members till the prosecutions were launched against them for the said criminal misconduct under Section 13(1)(e) of the Act.

4. Shri Habibulla Khan, the appellant in the appeal arising out of SLP No.1563 of 1993 filed an application before the Special Court on 25th July,1991 for recalling the orders of the cognizance of the offence on the ground that at the time of taking the cognizance, he was an MLA and as such as public servant within the meaning of Section 2(c)(vii) of the Act and, therefore, he could not be tried for the offence under Section 13(1)(e) of the Act without the sanction of the Governor of the State under Section 19 of the Act who according to him was competent to remove an MLA under Article 192 of the Constitution.On 18th January, 1991 the Special Court dismissed the application holding that an MLA was not a public servant and further the Governor was not competent to remove an MLA and hence no sanction was required under the said provision. This order was assailed by the appellant before the High Court under Section 482 of the Code of Criminal Procedure on 22nd January, 1993. The learned single Judge of the High Court referred the matter to Division Bench which dismissed the matter by its impugned judgment of 5th May, 1993 holding that an MLA is a public servant within the meaning of Section 2(c)(viii)