1998 Supreme(SC) 495

1998(4) Supreme 1
SUPREME COURT OF INDIA
(From Delhi High Court)
S.C. Aggarwal, G.N. Ray, A.S. Anand, S.P. Bharucha and S. Rajendra Babu, JJ.
P.V. Narasimha Rao -Appellant
versus
State (CBI/SPE) -Respondent
Criminal Appeal Nos. 1207-1208 of 1997
With
Crl. A.Nos. 1209/97, 1210-1212/97, 1213/97, 1214/97, 1215/97, 1216/97, 1217-18/97, 1219/97, 1220/97, 1221/97, 1222/97, 186/98 and 187/98
Decided on 17-4-1998
Counsel for the Parties :
For Shri P.V. Narasimha Rao (Appellant) : Mr. P.P. Rao, Sr. Advocate.
For Satish Sharma (Appellant) : Mr. D.D. Thakur, Sr. Advocate.
For Bhajan Lal (Appellant) : Mr. Kapil Sibbal, Advocate.
For some of J.D., A.S. M.Ps. : Dr. Suraj Singh, Advocate.
For the Respondent : Attorney General of India.

VERY IMPORTANT POINTS
1. Constitution Bench by majority has ruled that all the accused "bribe takers" (except one Mr. Ajit Singh M.P.) in JMM Bribery case enjoyed the protection of Article 105(2) of the Constitution. But "Bribe givers" were liable for trial under Section 120B IPC r/w Section 12 of PC Act, 1988 for which no prior sanction is needed.
2. A Member of Parliament is a Public servant under Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
3. Though no sanction is needed to prosecute a M.P. but before filing charge sheets against them permission of the Speaker of Lok Sabha or Chairman of the Rajya Sabha should be obtained by the prosecuting Agency.
Comments about possible developments of this ruling in future :
1. Former JMM MPs can claim the tainted money in this JMM bribery case.
2. Protection provided to MPs and MLAs as "bribe takers" in JMM bribery case may be misused.

Headnote:(i) Constitution of India-Article 105-Powers and privileges of Parliament-Whether a Member of Parliament enjoys immunity under Article 105(2) or under Article 105(3) of the Constitution from being prosecuted before a Criminal Court for an offence involving offer or acceptance of bribe for the purpose of speaking or giving his vote in Parliament in any committee thereof? (Per Minority of Aggarwal and Anand, JJ.-No) (Per Majority of Bachawat, Babu and Ray, JJ.) (Yes for bribe takers but No for bribe givers). (Paras 38, 43, 44 to 47, 53 and 181, 182, 184)

       (ii) Prevention of Corruption Act, 1988-Section 2(c)(viii)-Definition of Public Servant-Includes any person holding an office to perform any public duty-Whether a Member of Parliament is a Public Servant under Section 2(c) of P.C. Act, 1988 (Yes) (I.P.C. Section 21 -Public Servant). (Paras 65, 153, 165, 181 & 182)

       (iii) Prevention of Corruption Act, 1988-Sections 7, 10, 11, 13 and 15 r/w 19(1)-Prosecution of a Member of Parliament for offences under Sections 7, 10, 11, 13 and 15 of P.C. Act, 1988-Previous sanction under Section 19(1) of Act -Though necessary but as there is no authority competent to remove a M.P. and to grant sanction, Court can take cognizance without sanction but before filing charge sheets prosecuting agency should obtain permission from Chairman of Rajya Sabha or Speaker of Lok Sabha. (Paras 82, 181 and 182)

       (iv) Indian Penal Code, 1860-Section 120B (Conspiracy) and Section 12 of Prevention of Corruption Act, 1988 (abetment of offences under Section 7 or 11 of the Act)-JMM bribery case-Distinction between "bribe givers" and "bribe takers"-Court allowed (by Majority) prosecution of alleged "bribe givers" under Section 12 P.C. Act, 1988 r/w Section 120B IPC for which no prior sanction is needed-But quashed charges of corruption against "bribe takers" due to immunity under Article 105 of Constitution except one M.P. viz. Mr. Ajit Singh.

       (Per Bachawat and Babu, JJ.) :

       Held : We now set down the effect upon the accused of our findings.

       We have held that the alleged bribe takers who voted upon the no-confidence motion, that is, Suraj Mandal, Shibu Soren, Simon Marandi, Shailender Mehto, Ram Lakhan Singh Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed (accused Nos. 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred by Article 105(2).

       D.K. Adikeshavulu and M. Thimmogowda (accused Nos. 12 and 13) were at all relevant times private persons. The trial on all charges against them must proceed.

       When cognizance of the charges against them was taken. Butta Singh and N.M. Ravanna (accused Nos. 7 and 9) were not public servants. The question of sanction for their prosecution, does not, therefore, arise and the trial on all charges against them must proceed.

       P.V. Narasimha Rao, Satish Sharma, V. Rajeswar Rao, Ram Linga Reddy, M. Veerappa Moily and Bhajan Lal (accused Nos. 1, 2, 8, 10, 11 and 14) were public servants, being either members of Parliament or a State legislature, when cognizance of the charges against them was taken. They are charged with substantive offences under Section 120B of the Indian Penal Code and Section 12 of the said Act. Since no prior sanction is required in respect of the charge under Section 12 of the said Act, the trial on all charges against them must proceed.

       Ajit Singh (accused No. 15) was a public servant, being a member of Parliament, when cognizance of the charges against him was taken. He is charged with substantive offences under Section 120B of the Indian Penal Code and Sections 7 and 13(2) of the said Act. The trial of the charge against him under Section 120B of the Indian Penal Code must proceed.

       The appeals shall now be placed before a bench of three learned judges for hearing, on any other points that may be involved, and final disposal. (Paras 83 to 89)

       (Ray J. concurring) :

       As I respectfully agree with the reasonings indicated in the judgment of the learned brother Mr. Justice S.P. Bharucha that in the facts of the case, protection under Article 105(3) of the Constitution is not attracted but protection under sub-article (2) of Article 105 is available only to those accused, who as Members of Parliament had cast their votes in Parliament, I refrain from indicating separate reasonings in support of such finding. (Paras 184)