Judgment

RAY, J. (Agreeing)

(1) HAVE had the advantage of deciphering the two draft judgments prepared by my learned brothers Shetty and Verma, JJ. I agree with the conclusions arrived at by my learned brother Shetty, J. Yet considering the great importance of the questions involved in this matter, I deem it just and proper to consider the same and to express my own views.

(2) THREE very important questions fall for decision in this case. First of all whether a Judge of the Supreme court or a Judge of a High court is a public servant within the meaning of S. 2 of the Prevention of Corruption Act, 1947. S. 2 of the Prevention of Corruption Act interprets a public servant as meaning a public servant as deFined in Section 21 of the Indian Penal Code i.e. Act 45 of 1860. S. 21 of the Indian Penal Code states that a public servant denotes a person falling under any of the descriptions mentioned therein:

"THIRD Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions."

(3) THUS, the definition of a public servant is very wide enough to include Judges of the Supreme court as well as Judges of the High court. S. 77 of the Indian Penal Code provides immunity to the Judges in respect of any act done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

(4) THE next question is whether a Judge of the Supreme court or a 9 Judge of High court including the chief justice of the High court can be prosecuted for having committed the offence of criminal misconduct as referred to in clause (c) of Ss. (1 of S. 5 of the Prevention of Corruption Act, 1947. Provisions of clause (e) of S. 5(1 are as follows:

"5. (l)(c) 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 canftot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

Therefore, it is clear that a Judge will be liable for committing criminal misconduct within the meaning of clause (e) of Ss. (1 of Section 5 of the said Act if he has in his possession pecuniary resources or property disproportionate to his known sources of income for which the public servant (or a Judge as the public servant) cannot satisfactorily account. S. 6(l)(c) specifically enjoins that no court shall take cognizance of an offence punishable under S. 5 of this Act, alleged to have been committed by a public servant i.e. the Judge of the High court including the chief justice of the High court as in the present case, except with the previous sanction under clause (c) in the case of any other person, of the authority competent to remove him from his office. So to initiate a proceeding against a Judge of a High court for criminal misconduct falling under S. 5(l)(e), previous sanction of the authority who is competent to remove a Judge including chief justice of the High court from his office, is imperative.

(5) A Judge of the Supreme court as well as a Judge of the High court is a constitutional functionary appointed under Article 124 and under Article 217 of the Constitution respectively. Clause (2 of Article 124 further provides that every Judge of the Supreme court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme court and of the High courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. It also provides that in the case of appointment of a Judge other than the chief justice, the chief justice of India shall always be consulted. Article 217 provides that every Judge of a High court shall be appointed by the , President by warrant under his hand and seal after consultation with the chief justice of India, the governor of the State, and i