IMPORTANT POINTS
1. In cases covered under the P.C. Act, the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, u/s 197 the Code of Criminal Procedure, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties.
2. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial.

JUDGMENT

Dr. Arijit Pasayat, J. - Leave granted.

2. In both these appeals the basic question raised relates to the validity of sanction to prosecute the appellants for offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the ‘Act’). Sanction has been accorded both under the provisions of Section 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

3. Plea relating to cognizance of the offence is that previous sanction is necessary under the Act if the public servant does not hold the same office which he allegedly abused on the date when the cognizance was taken by the Court. Stand of the appellants is that even though a public servant does not hold the same office and holds some other office, then also sanction is necessary. It is stated in that context that the decision in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183) is per incuriam because the effect of Section 19(2) of the Act had not been considered. It is also submitted that the effect of the recommendations made by the Law Commission in its 41st report which necessitated sanction in terms of Section 197 of the Code extending the protection of sanction for a retired public servant as well should have been also extended under Section 6(1) of the Prevention of Corruption Act, 1947 (in short the ‘1947 Act’) corresponding to Section 19(1) of the Act. This according to us is a case of causus omissus. The decision in R. S. Nayak’s case (supra) cannot be regarded as a binding precedent in respect of the issues which did not relate to the three questions which were required to be decided in that case. The order rejecting the plea of lack of sanction and the jurisdiction is required to be passed by a speaking order. The Secretary to the Government had no jurisdiction to sign the sanction order on the instructions of the Governor. Therefore, the so-called sanction of the Governor has no sanctity in the eye of law. There is no material to show that the alleged disproportionate assets were relatable to a period when Smt. Rabri Devi was the Chief Minister. At that time she was also either holding the office of MLC or MLA and, therefore, the sanction granted has no validity.

4. It is to be noted that in Lalu Prasad Yadav’s case the sanction had been given by the Governor. The prosecution did not obtain the sanction separately so far as the appellant Rabri Devi is concerned as she was only a house wife and not a public servant during the relevant period. In the sanction accorded in respect of the appellant- Lalu Prasad Yadav, it has been expressly mentioned that the acts of Smt. Rabri Devi amounted to aiding and abetting of commission of offence under Section 13(1)(e) by her husband Lalu Prasad Yadav and she was thus liable to be prosecuted for offence punishable under Sections 107 and 109 of the Indian Penal Code, 1860 (in short the ‘IPC’).

5. One of the submissions made by Shri P.P. Rao, learned senior counsel appearing for the appellants is that the courts below had erroneously come to the conclusion that both in the case of discharge and for framing of charge no reasons are necessarily to be recorded. It is submitted that report of Dr. Bakshi Tekchand Committee which formed the basis of inserting Sub-section (2) of Section 6 of 1947 Act admits of no doubt and the same envisages two offices being held by the public servants one at the time of alleged offence and other at the time of taking cognizance.

6. Learned counsel for the respondent-State submitted that none of the pleas raised have any substance in law.

7. So far as the plea relating to causus omissus is concerned the position in law is as follows:

Two principles of construction one relating to causus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a causus omissus cannot be supplied by the Court except in the case of clear necessity and when reaso