1984 Supreme(SC) 46

SUPREME COURT OF INDIA
D. A. Desai, R. S. Pathak, O. Chinnappa Reddy,
A. P. Sen and V. Balakrishna Eradi, JJ.
R. S. Nayak -Appellant
versus
A. R. Antulay -Respondent
Criminal Appeal No. 356 of 1983 and
Transferred Case No. 347 of 1983
Padmakar Balkrishna Samant -Appellant
versus
Mr. Abdul Rehman Antulay and another
-Respondents
Transferred Case No. 348 of 1993
Decided on 16.2.1984
result -
The order of the Trial Judge discharging the accused is quashed and the appeal is allowed. Case is transferred to the High Court for expeditious hearing. (Paras 65 and 68)

IMPORTANT POINTS
1. The question of sanction under Section 6 of the Prevention of Corruption Act 1947 is to be denied at the time that the court takes cognizance of the case.
2. If an accused is holding a plurality of public offices and he is charged of abusing one of them; then permission is required only from the competent authority entitled to remove him from the abused office.
3. A M.L.A. is not a public servant within the ambit of any of the sub-sections of Section 21, Indian Penal Code 1860.

Headnote:(i) Indian Penal Code, 1860, Sections 161. 165 and Prevention of Corruption Act 1947, Sections 5 and 6 - Respondent was Chief Minister till 20-1-1980-However he is a M.LA till today-A criminal complaint against appellant on charges of misuse of office as C.M. came before Trial Judge in October 19S2-Trial Judge held that as respondent was no longer C M. no sanction under Section 6 of 1947 Act was required before launching prosecution against him.

       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)