HANSARIA, J.

( 1 ) THE important point for determination in this case is whether previous sanction is necessary for prosecution of an M. L. A. under the Prevention of Corruption Act, 1988 (hereinafter, "the Act" ). As this question is being examined by this Court (may be, by any High Court) for the first time after the Act had come into force, in which the definition of "public servant" as given in Section 2 (c) of the Act is different from and wider than that given in Section 21, of the Indian Penal Code, which had come up for consideration by a Constitution Bench in R. S. Nayak v. A. R. Antuley, AIR 1984 SC 684 : (1984 Cri LJ 613), in which it was held that an M. L. A. is not a public servant, detailed consideration of the matter is called for. In the background of very elaborate and' well studied arguments advanced by Shri Rath in support of the petitioner's stand for, whom he has appeared that such a sanction is necessary, which with ability has been controverted by Shri S. K. Das, learned Government Advocate, we are in a position to critically examine this question, which it deserves.

( 2 ) THE broad facts which need to be noted are that the petitioner was once a Minister of Orissa from 1980 to 1989 and is presently a sitting M. L. A. A chargesheet against him was submitted by the Vigilance Police on 27-3-1991 under Section 13 (1) (e) (possession of assets disproportionate to known sources of income) read with Section 13 (2) (the punishing Section) of the Act. Cognizance was taken by the Special Judge, Vigilance, Bhubaneswar on 15-6-1991 in T. R. Case No. 3 of 1991, and the matter was fixed to 25-7-1991 for consideration of charge. An objection was filed by the petitioner that the cognizance taken was in violation of Section 19 of the Act, as there was lack of previous sanction the learned Special Judge rejected the petitioner's contention, inter alia, because an M. L. A. does not hold an office and also because he does not perform any public duty. Feeling aggrieved, this petition has been filed.

( 3 ) SHRI Rath, persuasive and capable lawyer as he is, submits that the learned Special Judge committed an error of law in both of his aforesaid findings inasmuch as, according to the learned counsel, an M. L. A. "holds an office" and does perform "public duty". Satisfaction of these two requirements is enough to hold that an M. L. A. is a public servant in view of the definition of this expression as given in the Act which, as already noted, is wider than the definition given to this expression in the Indian Penal Code.

( 4 ) WE may first note the relevant part of the definition of "public servant" as given in Section 21 of the India Penal Code, as contained in sub-clause (a) of the twelfth clause which is relevant for our purpose, the same being :-"every person - (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;" it is this definition which had come up for consideration before the apex Court in Antuley's case and for reasons given in that judgment it was held that an M. L. A. is not a public servant within the meaning of the aforesaid sub-clause. Shri Rath submits that the reasoning given by the Constitution Bench in not holding an M. L. A. to be a public servant within the aforesaid sub-clause is somewhat faulty. We think the embarrassment caused to us in this regard could have been avoided as the petitioner is really not relying in support of his case on this part of the definition of public servant as given in the Act, which is contained in clause (i), but on clause (viii), which reads :-"any person who holds an office by virtue of which he is authorised or required to perform any public duty". We would, therefore, confine our attention whether as per this definition, an M. L. A. can be said to be a public servant.

( 5 ) FOR the aforesaid clause to be attracted, two requirements must be satisfied; (i) an M. L. A. must hold an offi