IMPORTANT POINT
Where a Minister of State for Electricity was charged u/s. 120B. IPC that while functioning as Minister for Electricity he without the consent of State Govt. supplied certain units of electricity to a private Industry in another State, sanction u/s. 197(1) of Cr. P.C. is a pre-requisite.

ORDER

A.M. Ahmadi, C.J.- Special leave granted.

2. Two questions were raised before the High Court, namely, (i) whether sanction under Section 197 (1) of the Code of Criminal Procedure (hereinafter called the 'Code') was required for the prosecution under the Prevention of Corruption Act, 1947, and (ii) whether sanction under Section 6 of that Act was a pre-requisite for the prosecution of an accused public servant under Section 5 thereof even when such public servant had ceased to be a public servant on the date of taking cognizance of the offence by the Special Judge? In order to appreciate the exact point arising in this case and raised in this appeal, it is necessary to refer to the charge framed by the learned Enquiry Commissioner and Special Judge, Thiruvananthapuram. The charge framed is in two parts. The first part is to the effect that the accused Shri R. Balakrishna Pillai while functioning as Minster for Electricity, Government of Kerala, between May, 1982 and 5.6.1985 and his co-accused while functioning as Technical Member/Chairman of the Kerala State Electricity Board, Thiruvananthapuram, between 1.2.1984 and 30.11.1985, in their capacity as such public servants during the period from July, 1984 to November, 1985 entered into a criminal conspiracy to sell electricity to the State of Karnataka, to be supplied to M/s. Graphite India Limited, Bangalore, Karnataka State, without the consent of the Government of Kerala, which was an illegal act under the provisions of the Electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules and in pursuance of the said conspiracy he abused his official position and illegally sold 12241440 units to M/s. Graphite India Limited, Karnataka (the Karnataka Party) during the months of October, 1984 and May, 1985 and thereby caused the said private party to obtain undue pecuniary advantage to the tune of Rs. 19,58,630.40 and more by way of resultant profit to the industry and thereby committed an offence punishable under Section 120-B, Indian Penal Code. The second charge relates to the commission of an offence punishable under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act with which we are not concerned because it was not contended before us by counsel for the appellant that sanction under Section 197 of the Code was required insofar as that charge was concerned.

3. Section 197(1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

4. We may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197 as it then stood, observed “it appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needles or vexatious prosecutions. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". It was in pursuance o