PARKASH SINGH BADAL AND ANR. v. STATE OF PUNJAB AND ORS

Citation: [2006] SUPP. 10 S.C.R. 197

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, S.H. KAPADIA

Case summary

PARKASH SINGH BADAL AND ANR. v. STATE OF PUNJAB AND ORS.pdf

Judgment text

PARKASH SINGH BADAL AND ANR. v. STATE OF PUNJAB AND ORS. DECEMBER 6, 2006 [DR. ARIJIT PASAYAT AND S. H. KAPADIA, JJ. ] Prevention of Corruption Act, 1947; s. 6(2)/Prevention of Corruption Act, 1988; ss. 7, 8, 9, 10, 11, 13, 15 and 19/Code of Criminal Procedure, 1973; ss. 2, 41, 154, 173 and 197: Prosecution of public servant-Protection from-Sanction before prosecution-Necessities of-Held: Principle ofimmunity protects only those acts ofa public servant performed in exercise offunction ofthe Government- But it does not protect criminal acts of a public servant though performed under the colour ofauthority but in reality performed for its own pleasure/ benefit-Proiection so given is to protect a responsible public servant against institution ofvexatious criminal proceedings for offences allegedly committed by him ·while acting/purporting discharge of official duties-Sanction to prosecute, ifgranted, confers on Government complete control ofprosecution- In terms ofSection 197 Cr. P. C.

, bar on exercise ofpower by Court to take cognizance ofany offence against public servant is absolute and complete- Protection afforded to public servant available subject to fulfilment ofcertain conditions-Conditions specified under the provisions are mandatory in nature-Protection available only to those acts/omission purportedly done in exercise of official duties-If act done in course of service but not in discharge ofofficial duties bar to prosecute without sanction from competent authority not available to public servant-Sanction need not be obtained at the time of lodging of complaint but at any stage of proceedings . Public Servant-Prosecution-Information to Magistrate-Framing of charges-Requirements of-Held: Information/Report to Magistrate sufficient elaborate details not necessary-At the stage offraming ofcharges, material available on record need not be analysed minutely-Sanctioning authority need not separately specifY each of offences against accused public servant.

Complaint-Misuse of office by public servant-Plea of malafides- Held: Plea ofmalafides not only required to be clearly pleaded but specifically proved-Merely because the political opponent was the complainant that does not per se lead to such an inference to dismiss the complaint/no notice should be taken thereof-Hence the plea of malafides as raised cannot be maintained in the facts and circumstances of the case. Constitution of India, 1950; Articles 233 and 234: Appointment of special Judge to a Special Court-High Court- Jurisdiction and power of-Held: In the facts and circumstances ofthe case, Articles 233 and 234 not attracted Section I54 Cr. P. C. -FIR-Legal principles governing registration of a cognizable offence-Discussed Words and Phrases: "Absence ofsanction' and 'Invalidity on account ofnon-application of mind'-Distinction between-Discussed Abuse ofOffice-Test-Requirement of-Discussed. Criminal Misconduct-Requirements of-Discussed in the context ofs.

13 of the Prevention of Corruption Act, 1988. 'Failure ofjustice', 'in the opinion of-Meaning ofin the context ofsubsection (3) and (4) of s. 19 of Prevention of Corruption Act, 1988. 'lncuria'-Meaning of Public Functionary-Public servant-Abuse of office-MischiefRule- Invoking of Questions which arose for determination in these appeals were about validity of proceedings initiated against appellant, the then Chief Minister of Punjab and Ors, under the Prevention of Corruption Act, 1988 and/or the Indian Penal Code, 1860; and also as to the necessities of sanction before prosecuting them in terms of s. 197 Cr. P. C. and the legality thereof. Appellants contended that the proceedings were initiated against them on the basis of complaints which were lodged malajide and as an act of political vendetta; that allegations are vague, lack in details and even if accepted at the TJ. !

face value, did not show the commission ofany offence; that though the High Court primarily relied on a Constitution Bench decision of this Court in R. S. .... PARKASH SINGHBADALv. STATE OF PUNJAB 199 . Nayak v. A. R. Antulay, [1984) 2 SCC 183, the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (Old Act); that the provisions contained in Section 6 thereof are in pari materia to Section 19 of the 1988 Act; the effect ofSection 6(2) ofthe Old Act corresponding to Section 19(2) of the Act was lost sight of; that the voluminous charge sheets filed are extremely vague and do not indicate commission ofany definite offence; that the offences alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under Section 197 Cr. P. C.

is mandatory; that even offences punishable under Sections 468, 471 and 1208 have been in certain cases held to be relatable to the official duty thereby mandating sanction in terms of Section 197 of the Code; that the malafuie intention is clear as all these cases were registered at Mohali Police Station which was declared to be the police station for the purpose of investigation of the concerned cases and new Court was established for the trial of the concerned cases and jurisdiction was conferred on one officer without following the due process ofconsultation with the High Court.

These are indicative of the fact that action was taken with ma/afide intention only to harass them; that this was a case of casus omissus; that a public servant who continues to remain so (on transfer) has got to be protected as long as he continues to hold his office; that even ifthe offending act is committed by a public servant in his former capacity and even ifsuch a public servant has not abused his subsequent office still such a public servant needs protection ofSection 19(1) of the Act; that charge sheet is a bundle ofconfusions and no definite material is placed on record to substantiate the allegation of commission ofany offence; and that in the documents filed only Section 13(1) ofthe Act has been only mentioned and not the exact alleged infraction. Respondent-State and others submitted that the decision in R. S.

Nayak's case correctly lays down the position; that the allegations of mala fide are clearly unfounded; that no new court was established and in fact Special Judge of Special Court who was appointed only after consultation with the High Court, he was only designated to hear the cases; that the decision in R. S. Nayak's case is not per incuriam as contended. Under Section 19(1) of the Act previous sanction is prescribed for a public servant if (a) he is a public servant at the time of taking cognizance of the offence and (b) the accused continues to hold office alleged to have been mis-used at the time of taking cognizance of the offence by the Court; and that where the public servant has ceased to be a public servant in one capacity by ceasing to hold office which is alleged to have been misused, the fortuitous circumstance of the accused being in another capacity holding an entirely different public office is • irrelevant. Dismissing the appeals, the Court HELD: 1. 1.

This Court in the decided case ofR. S. Nayak v. A. R. Antu/ay adopted a construction which is based on the avoidance of mischief rule. That being so, the plea that the effect ofSection 6(2) of the Old Act (Prevention of Corruption Act, 1947) was not kept in view does not merit acceptance. Though mere reference to a provision in all cases may not in all cases . imply consciousness as to the effect of that provision the case at hand. does notfall to that category. In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object ofthe statute and the need for interpretation in. a particular way. (222-A-B-C) R. S. Nayak v. A. R. Antulay, (1984) 2 SCC 183, referred to. (1977) Imperial Court Report (662), referred to. 1. 2.

The principle of immunity protects all acts which the public servant has to perform in the exercise ofthe functions ofthe Government The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine ofState immunity. Where the act performed under the colour ofoffice is for J;the benefit ofthe officer or for his own·pleasure Section 19(1) will come in. Therefore, Section 19(1) is time and offence related. (223-C-D-E) Habibulla Khan v. State of Orissa and Anr. , (1995) 2 SCC. 437· and Shreekantiah Ramayya Munipalli v. The State ofBombay, (1955) l SCR 1177, referred to. 1. 3. Ifa public servant in his subsequent position is not accused of any criminal acts then there is no question of invoking the mischiefrule.

Protection to public servants under Section 19(1)(a) ofthe Prevention ofCorruption Act, 1988 has to be confined to the time related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorized under Sections 7, 10, 11, 13 and 15 of the Act This is the principle behind the test propounded by this court, namely,. the test of abuse of office. (225-B-C) Balakrishnan Ravi Menon v. Union ofIndia, (2007] 1 SCC 45, referred PARKASH SINGH BADAL v. STATE OF PUNJAB 201 to. 1. 4. Effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-Section (3) the stress is on "failure of justice" and that too "in the opinion of the Court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure ofjustice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root ofjurisdiction as observed by this Court in the Narasimha Rao's case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act/ Section 19(2) of the Act question relates to doubt about authority to grant sanction and not whether sanction is necessary. (226-C-D-E) P. V. Narasimha Rao v. State, (1998) 4 SCC 626, referred to. 2. 1. "lncuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" as held in Young v. Bristol Aeroplane Co. Ltd. is avoided and ignored if it is rendered "in ignoratium of a statute or other binding authority".

Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. (227-A-B-CI Govt. ofA. P. v. B. Satyanarayana Rao, (2000) 4 SCC 262; State ofUP. v. Synthetics and Chemicals Ltd. , [1991) 4 SCC 139; Babu Parasu Kaikadi (dead) by Lrs. v. Babu (dead) thr. Lrs. , (2004) 1 SCC 681 and Sunita Devi v. State ofBihar and Anr. , (2005) 1 SCC 608, relied on. Young v. Bristol Aeroplane Co. Ltd. , (1944) 2 All ER 293, referred to. Halsbury's Laws ofEngland, 4th Edn. , Vol. 26, referred to. 2. 2. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 Cr. P. C.

can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept ofSection 197 Cr. P. C. does not immediately get attracted on institution of the complaint case. (220-C-D-E-F) Bakhshish Singh Brar v. S1!

1t. Gurmej Kaur and Anr. , AIR (1988) SC 257 and P. Arulswami v. State ofMadras, AIR (1967) SC 776, relied on. 2. 3. Section 197 Cr. P. C. not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law ifthe conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance ofsuch offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance ofany offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. (230-A-B-C) Black's Law Dictionary, referred to. 2. 4. Section 197 Cr. P. C.

does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge ofofficial duty. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise ofofficial duty. That is under the colour ofoffice. Official duty therefore implies that the act or omission m_ust have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. 1231-A-B-C) B. Saha and Ors. v. MS. Kochar, 11979) 4 SCC 177 and Matajog Dobey v. H. C. Bhari, AIR (1956) SC 44, relied on. PARKASH SINGH BADAL v. STATE OF PUNJAB 203 2. 5.

Ifon facts it is primafacie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability ofSection 197 of the Code cannot be disputed. 1232-A-B) State ofH. P. v. MP. Gupta, (2004) 2 SCC 349; State ofOrissa through Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew, JT (2004) 4 SC 52; Shri S. K. Zutshi and Anr. v. Shri Bimal Debnath and Anr. , JT (2004) 6 SC 323; K. Kalimuthu v. State by DSP, (2005) 4 SCC 512 and Rakesh Kumar Mishra v. The State ofBihar and Anr. , (2006) l SCC 557, relied on. 3. 1. The question relating to the need ofsanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage ofthe proceeding. (234-G-H) 3. 2.

So far as the question about the non application of mind in the sanction or absence of sanction is concerned, this has been answered in the first question i. e. where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have been taken place, the other questions really become academic. 1235-A-BI 3. 3. The report in terms of Section 173 Cr. P. C. is in the nature of information to the Magistrate. Statutory requirement is complied with ifthe requisite information is given. It purports to be an opinion and therefore elaborate details are not necessary. 1239-B-C) K. Veeraswamiv. Union ofIndia andOrs. , (1991) 3 SCC 655, relied on. 3. 4. Mere non-description ofthe offences in detail is really not material. At the stage of framing charge it can be urged that no offence is made out. 1240-B) 3. 5.

With reference to the absence of allegations under Sections 8 and 9 of the Act, it is submitted whether the charge sheet has reference to any particular material referred to in it and the relevance ofit is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the Court is primarily concerned with the question as to whether charge is to be framed in respect ofany offence and whether there primafacie appears existence ofany material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by the respondent- State. [240-B-C-DI 3. 6. The offence ofcriminal mis-conduct is defined in Section 13. Five clauses contained in the said provision represent different types ofinfraction under which the offence can be said to have been committed.

Ifthere is material to show that the alleged offence falls in any of these categories, it is not necessary at the stage of filing of the charge sheet to specify as to which particular clause covers the alleged offence. It is the stand ofthe respondent- State that clauses (a), (b) (d) and (e) are all attracted and not clause (c). Therefore, the sanctioning authority has rightly referred to Section 13(1) and that does not make the sanction order vulnerable. [240-F-G] 3. 7. Sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances ofeach case and there cannot be any generalized guidelines in that regard. [240-G-H; 241-Al 3. 8.

The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence ofsanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial. [241-B) 4. 1. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 1208 can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge ofofficial duty. In such cases, official status only provides an opportunity for commission of the offence. [241-E) Rakesh Kumar Mishra v. The State of Bihar and Anr. , [2006) 1 SCC 557, distinguished. Baijnath v. State ofMP. , [1966) SCR 210, referred to. 4. 2. The opening word of Sections 8 and 9 ofthe Act is "whoever". The PARKASH SINGH BADAL v.

STATE OF PUNJAB 205 expression is very wide and would also cover public servants accepting gratification as a motive or reward for inducing any other public servant by corrupt or illegal means. Restricting the operation of the expression by curtailing the ambit of Sections 8 and 9 and confining to private persons would not reflect the actual legislative intention. [241-H; 242-A) Ram Krishan andAnr. v. State ofDelhi, AIR (1956) SC 476, referred to. 4. 3. Section 13(1)(d) ofthe Act envisages obtaining ofany valuable thing or pecuniary advantage, on the other hand Sections 8 and 9 of the Act are much wider arid envisage taking of "any gratification whatever". It would not be permissible to contend that a public servant would be covered by Section 13(1)(d) of the Act and therefore the public servant would not be covered by Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the offences under Sections 8 and 9 of Act are different and separate. [242-E-F) 4. 4.

Ifa public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc. then he would fall in the net of Sections 8 and 9. In Section 13(1)(d) it is not necessary to prove that any valuable thing or pecuniary advantage has been obtained for inducing any public servant. (242-G-H] 4. 5. The word 'gratification' is not restricted to pecuniary gratifications or to gratifications estimable in money. Thus, Sections 8 and 9 are wider than Section 13(1)(d) and clearly constitute different offences. (243-Bl 5. 1. A plea ofmalafides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions would not be sufficient. The person against whom malafides conduct is attributed is interestingly not a party in the proceedings. (243-E) 5. 2.

Merely because the political opponent was the complainant that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof. [243-F-G) 6. 1. The legal mandate enshrined in Section 154 (1) Cr. P. C. is that every information relating to the commission of a 'cognizable offence' (as defined under section 2 (c) of the Code) if given orally (in which case it is to be reduced into writing) or in writing to "an officer incharge of a police station" (within the meaning ofSection 2(o) of the Code) and signed by the informant should . be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as "First Information Report" and which act of entering the information in the said form is known as registration ofa crime or a case. (244-E-Fl 6. 2.

At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate ofSection 154 (I) Cr. P. C. , the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on tht ground that the information is not reliable or credible. 1244-F-Gj 6. 3. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission ofa cognizable offence and to register a case thereon on the ground that he is. not satisfied with the reasonableness or credibility of the information. (245-D-El 6. 4.

An overall reading of the Codes of 1861, 1872, 1882 and 1898 makes it clear that the condition which is sine-qita-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer incharge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such info. rmation. Though a police officer cannot investigate a non-cognizable offence on his own as in the cas~ of cognizable offence, he can investigate a non-cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) ofthe Code but subject to Section 155(3) ofthe Code.

[245-G-H; 246-A-B-C) State ofHaryana and Ors. v. Bhajan Lal and Ors. , 11992I Supp I SCC . 335 and State ofPunjab and Anr. v. Gurdial Singh and Ors. , 11980) 2 SCC 471, referred to. 6. 5. Obligation to register a case is not to be confused with the remedy if same is not registered. The ultimate test therefore is whether the allegations have any substance. An investigation should not be shut out at the threshold PARKASH SINGH BADAL v. STATE OF PUNJAB 207 political opponent or a person with political difference raises an allegation of ,commission ofoffence. Therefore, the plea of malafides as raised cannot be maintained. (248-A-BJ Gangadhar Janardan Mhatre v. State ofMaharashtra and Ors. , (20041 7 sec 768, relied on. 7. 1. So far as conferment of jurisdiction with the police station over the whole State is concerned, it appears that the same was created on 31. 10. 1994 by the then Government of Chandigarh and by order dated 20. 4.

1995 the office of Superintendent of Police, Vigilance Flying Squad-I/ Criminal Investigation Agency was shifted to Police Station, Mohali. This order continued to operate subsequently. As rightly contended by the respondent-State that the fresh notification was issued creating some more police stations qua other districts. It is pointed out that PS Mohali falls within the Ropar district and within the area of Special Judge, Ropar as was specified in consultation with the Punjab and Haryana High Court. The Special Judges are transferred by the High Court and, therefore, the allegation of choosing any Special Judges with oblique motive is clearly without any substance. )248-C-D-EJ 7. 2. Notification regarding re-organization of the police station with Police Station, Mohali having jurisdiction over the whole State ofPunjab was notified on 19. 12. 2002. At this juncture, it is relevant to note that allegations ofimpropriety were made because ofthe Notification dated 17. 11.

2003 relating to jurisdiction ofthe Special Judge. The controversy revolves around the said Notification regarding P. S. , Mohali with Statewide jurisdiction. So far as the Notification dated 17. 11. 2003 is concerned, the expression used is "appoint". It was clarified that though the said expression has been used, it did not actually mean appointment ofa Sessions Judge and First Additional Sessions Judge, Ropar as Special Judges. They were already appointed and designated as stated in the Notification itself. What was intended is related to allocation of cases registered at P. S. , Mohali to the existing Courts of Special Judges, Ropar. There is also no dispute that P. S. , Mohali falls within the area of district Ropar over which Special Judges, Ropar had jurisdiction as approved by the High Court (248-E-F-G; 249-A-B-C] 8. 1. There is no doubt that the control of the High Court is comprehensive, exclusive and effective and it is to subserve the basic feature ofConstitution.

(249-EI High Court ofJudicature for Rajasthan v. Ramesh Chand Paliwal and Anr. , f1998) 3 SCC 72 and Registrar (Admn. ), High Court ofOrissa,, Cuttack v. Sisir Kanta Satapathy (dead) by Lrs. and Anr. , (1999)·7 SCC 725, referred to. 8. 2. Articles 233 and 234 of the Constitution are not attracted because this is not a case where appointment of persons to be Special Judges or their postings to a particular Special Court is involved. It is however factually conceded that the expression "notwithstanding the jurisdiction of other Special Judges in the State of Punjab" is not necessary. Once group of cases are allocated to Special Court, consequentially other Special Courts cannot deal with them. (249-F-G] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5636 of2006. From the Judgment and final Order dated 2. 9. 2004 ofthe High Court of Punjab and Haryana at Chandigarh in C. W. P. No. 9410/2004. Gopal Subramanium, A. S. G. , Mohan Parasaran, A. S. G. R. S. Checma, A. A. G. , Soli J.

Sorabjee, K. K. Vengupoal, P. P. Rao, Arun Jaitley, L. N. Rao, Trivedi, Mukul Rohtagi, H. S. Mattewal, Rakesh Dwivedi, Dr. A. M. Singhvi, K. B. Sinha, Ashok H. Desai, Ranjit Kumar, K. R. Sasiprabhu, M. K. Sreegesh, Hari Priya, Fazlim Anam, E. M. S. Anam, S. Janani, D. Mahesh Babu, Krishnan Venugopal, S. Udaya Kumar Sagar, Bina Madhavan, H. S. Sidhu, Shweta Garg, Hari Kumar, G. , Vinayagam, Vikram Choudh~ry, Dashmeeta Chadha (for Mis. Lawyer's Knit & Co. ). Jayshree Anand, Karunakar Mahalik, P. H. Parekh, E. R. Kumar, Shakum Sha;rma, Abhishek Kumar, Ailshuman Ashok, Purushottam Tripathi, K. Ramesh (for Mis. P. H. Parekh & Co. ) Aparajita Singh, T. Mahipal, Sudhir Wali~, Sanjay Hegde, Priank Adhyaru, Sanjay Jain, Mukesh Kumar, Hinmat Singh Shergill, Arun K. Sinha, R. Satish, Pallav Shishodia, Gopal Singh, Nishakant Pandey, Vimla Sinha, Chidananda D. L. K. K. Senthilvelan, Gaurav Dhingra, P. Parmeswaran and Ajay Sharma for the appearing parties.

The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. Leave granted. In each of these appeals challenge is to the judgment of the Punjab and Haryana High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code, PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J. ] 209 1860 (in short the 'IPC'). In the latter category of cases the question raised is either lack of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 (in short the 'Code') or the legality thereof. It is the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged ma/a fide and as an act of political vendetta. It is stated that allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence.

It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R. S. Nayak v. A. R. Antulay, [1984} 2 SCC 183, the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted that the provisions contained in Section 6 thereof are in pari materia to Section 19 ofthe Act so far as relevant for the purpose of this case; the effect ofSection 6(2) ofthe Old Act (corresponding to Section 19(2) ofthe Act) was lost sight of. The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant ofdifferent category then no sanction in terms of Section 19(I) of the Act corresponding to Section 6(1) of the Old Act is necessary. So far as the factual scenario of these cases is concerned appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt.

Surinder Kaur is his wife and Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri Gurdev Singh B\ldal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly. Shri Sukhbir -Singh Badal was a member of the Parliament. As noted above, primary stand is that the effect of Section 6(2) of the Old Act corresponding to Section 19 (2) ofthe Act was not considered and in that view of the matter the judgment in Antulay 's case (supra) is to be considered per incuriam. Additionally, it is submitted that the voluminous charge sheets filed are extremely vague and do not indicate commission of any definite offence. Some allegations of general nature have been made. The decision in P. v. Narasimha Rao V.

State, [1998] 4 sec 626, specifically dissented from the view regarding vertical hierarchy which appears to be the foundation for the conclusion that the authority competent to remove the accused from office alone could give sanction. It is submitted that the offences alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under Section 197 of the Code is mandatory. With reference to several judgments of this Court it is submitted that even offences punishable under Sections 468, 471 and l20B have been in certain cases held to be relatable to the official duty thereby mandating sanction in terms of Section 197 of the Code.

It is pointed out that the ma/a fide intention is clear as· all these cases were registered at Mohali Police Station which was declared to be the police station for the purpose of investigation of the concerned cases and new Court was established for the trial ofthe concerned cases and jurisdiction was conferred on one officer without following the process of consultation with the High Court. These are indicative of the fact that action was taken with ma/a fide intention only to harass the accused persons as noted above. Learned counsel for the respondents on the other hand submitted that the decision in R. S. Nayak 's case (supra) correctly lays down the position. Several attempts were made in the past to distinguish said case and to propound that the said decision did not indicate the correct position in law. The allegations of ma/a fide are clearly unfounded.

No new court was established and in fact Special Judge of Special Court who was appointed to have consultation with the High Court was only designated to hear the cases. In fact for the sake of convenience these cases having link with each other can be disposed of early if they are taken up together by one Court. In essence, it is submitted that the decision in R. S. Nayak's case (supra) is not per incuriam as contended. Under Section 19(1) of the Act previous sanction is prescribed for a public servant if (a) he is a public servant at the time of taking cognizance of the offence and (b) the accused continues to hold office alleged to have been mis-used at the time of taking cognizance of the offence by the Court. This is the view expressed in R. S. Nayak 's case (supra). Section 6 of the Old Act and Section 19 of the Act read as follows: "6. Power to try summarily.

-{l) Where a special Judge tries any offence specified in sub-section (1) of section 3, alleged to have been committed by a public servant in relation to the contravention of any special order referred to in sub-section (1) of section 12 A of the Essential Commodities Act, 1955 (10 of 1955) or ofan order referred to in clause (a) ofsub-section (2) ofthat section, then, notwithstanding anything contained in sub-section (1) of section 5 of this Act or section 260 of the Code of Criminal Procedure, 1973 (2of1974), the PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J. ] 211 special Judge shall try the offence in a summary way, and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial: Provided that, in the case ofany conviction in a summary trial under this section, it shall be lawful for the special Judge to pass a sentence of imprisonment for a term not exceeding one year: · Provided further that wher.

at the commencement of, or in the course of, a summary trial under this section, it appears to the special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the, cac;e summarily, the special Judge shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or re-hear the ease in accordance with the procedure prescribed by the said Code for the trial ofwarrant cases by Magistrates.

(2) Notwithstanding anything to the contrary contained in this Act or in the Code ofCriminal Procedure, 1973 (2of1974), there shall he no appeal by a convicted person in any case tried summarily under this section in which the special Judge passes a sentence of imprisonment not exceeding one month, and of fine not exceeding two thousand rupees whether or not any order under section 452 of the said Code is made in addition to such sentence, but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by a special Judge. 19. Previous sanction necessary for prosecution.

-{I) No court shall take cognizance ofan offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except p with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs ofa State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of Cijly other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (I) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of1974), (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confinnation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section ( 1), unless in the opinion of that court, a failure ofjustice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omi~sion or irregularity in, such sanction has occasioned or resulted in a failure ofjustice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation-For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. IPC provided for offences by or relating to public servants under Chapter PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J. ] 213 IX including Sections 161to165A. The Old Act was enacted on 12. 3. 1947, with the object of making provisions for the prevention of bribery and corruption more effective. In I952 a Committee headed by Dr.

Bakshi Tek Chand was constituted. The said Committee examined the true intent and purpose of Section 6 of the Old Act. It was inter alia noted by the Committee as follows: "Section 6 of the Act prescribes that no prosecution under Section 5(2) is to be instituted without the previous sanction of the authority competent to remove the accused officer from his office. The exact implications of this provisions have on occasions given rise to a certain amount of difficulty. There have been cases where an offence has been disclosed after the officer concerned has ceased to hold office, e. g. , by retirement. In such cases it is not entirely clear whether any sanction is at all necessary.

Another aspect of the same problem is presented by the type of case which, we are told, is fairly commonwhere an officer is transferred from one jurisdiction to another or an officer who is lent to another Department, commits an offence while serving in his temporary office and then returns to his parent Department before the offence is brought to light. In a case of this nature doubts have arisen as to the identity of the authority from whom sanction for prosecution is to be sought. In our opinion there should be an unambiguous provision in the law under which the appropriate authority for according sanction is to be determined on the basis of competence to remove the accused public servant from office at the time when the offence is alleged to have been committed.

" The Law Commission ofIndia in its 41st Report recommended amendment to Section 197 of the Code suggesting to grant protection of previous sanction to a public servant who is or was a public servant at the time of cognizance. Following the report ofthe Law Commission oflndia, Section 197 of the Code was amended in 1969. The Act was enacted on 9. 9. 1988 and the Statement of Objects and Reasons indicated widening of the scope of the definition of"public servant" and the incorporation ofoffences already covered under Sections 161 to l 65A of the IPC in the Act. New Section 19 as was enacted virtually the same as section 6 of the Old Act. Earlier to R. S. Nayak 's case (supra) this Court had occasion to deal with the issues in S. A. Venkataraman v. State, AIR (1958) SC 107. , In para 14 it was stated as follows: "..... 14..

There is nothing in the words used in Section 6(1) to even -- remotely suggest that previous sanction was necessary before a court could take cognizance ofthe offences mentioned therein in the case of a person who had . ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed...... A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority...... " Following the decision rendered in Venkataraman's case (supra) and C. R~ Bansi v. State of Maharashtra, [1970) 3 SCC 537, the High Court accepted the view of learned trial Judge and declined relief as noted a~ove. The use of the expression "is" in Section 19 of the Act vis-a-vis the expression "is" or "was" is indicative of the legislative intent. Though certain changes were made in the Code no corresponding change was made in the Act. Mr. P.

P, Rao, learned senior counsel for the appellants in connected case contended that this was . a case of casus omissus. The discussions indicate that the reports ofDr. Bakshi Tek Chand and ofthe Law Commis. sion of India were to be accepted so far as they relate to covering the ex publ~c servants. This plea shall be dealt with in the cases separately. In reply, learned counsel for the respondents submitted that much before R. S. Nayak's case (supra) this Court in C. R. Bansi's case (supra) held as follows: "9..... But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him a public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to \ be bad for lack of sanction under Section 6 of the Act.

" It is their stand that where the public servant has ceased to be a public servant in one capacity by ceasing to hold office which is alleged to have been misused, the fortuitous circumstance of the accused being in another capacity holding an entirely different public office is irrelevant. It was categorically held in R. S. Nayak's case (supra) in para 13 that "on analysis of the policy of the whole section the authority competent to remove the public servant from the office alleged to have mis-used is alone the competent . .... PARKASHSINGHBADALv. STATEOFPUNJAB(PASAYAT,J. ] 215 sanctioning authority. " In that case, it was inter alia, held as follows: "13. Section 5ofthe 1947 Act defines the offence ofcriminal misconduct and a public servant who commits an offence ofcriminal misconduct is liable to be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.

Section 6 provides for a sanction as precondition for a valid prosecution for offences punishable under Sections 161, 164, 165 IPC and Section 5 ofthe 1947 Act. It reads as under: 6. (l) No court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code, or under subsection (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with affairs ofthe Union and is not removable from his office save by or with the sanction of the Central Government, (b) in the case of a person who is employed in connection with the affairs ofa State and is not removable from his office save by or with the sanction of the State Government, (c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (l) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. Xx xx xx xx 19. Section 6 bars the court from taking cognizance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority ... empowered to grant the requisite sanction. Section 8 of 1952 Act prescribes procedure and powers of Special Judge empowered to try offences set out in Section 6 of I 947 Act. Construction of Section 8 has been a subject to vigorous debate in the cognate appeal.

In this appeal we will proceed on the assumption that a Special Judge Can take cognizance of offences he is competent to try on a private complaint. Section 6 creates a. bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clauses (a), (b) and (c) oJ sub-section (l). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant. (See C. R. Bansi v. State ofMaharashtra, [1971] 3 SCR 236. Existence thus of a valid sanction is a prerequisite to the taking or"cognizance ofthe enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court.

Therefore, when the court is called upon to take cognizance of such offenc~s, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been -committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Section 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence; a sanction ought to be available otherwise the court would hav_e no jurisdi~tion to take cognizance of the offence. Atrial without a vajid sanction ":'here one is necessary under Section 6 has been held to be a trial without jurisdiction by the court. (See R. R. Chari v. State ofUP. , [1963] I SCR 121) and S. N. Bose v.

State ofBihar, (1968] 3 SCR 563 In Mohd. Iqbal Ahmad v. State ofA.. P. , [1979] 2 SCR 1007 it was held that a trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the court is called upon to take cognizance of the offence. Iftherefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the, court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would he necessary for taking cognizance PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J. ) 217 of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist.

As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted. This aspect is no more res integra. In S. A. Venkataraman v. State, [1958] SCR 1040 this Court held as under: In our opinion, in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apμly. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants.

Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority. And this view has been consistently followed in CR Bansi case and K. S. Dharmadatan v. Central Government, [1979] 3 SCR 832. It therefore appears well settled that the relevant date with reference to which a valid_sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is th~ date on which the court is called upon to take cognizance of the offence of which he is accused (underlined for emphasis) Xx xx xx 23. Offences prescribed in Sections 161, 164 and 165 IPC and Section 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office.

Power generally is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status. The holder of the office alone would have opportunity to abuse or misuse the office. These sections codify a well-recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrelation and interdependence between individual and the office he holds is substantial and not severable.

Each of the three clauses of sub-section (1) of Section 6 uses the expression office' and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cogn·~~nce of offences committed by public servant. The offence would 1ie committed by the public servant by misusing or abusing the power of office and it is from that office, the autbority must be competent to remove him so as to be entitled to grant sanction. The -removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by. removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for cluing or forbearing to do an official act (Section 161 IPC) or as a public servant abets.

offences punishable under Sections 161 and 163 (Section 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public serv'ant (Section 165. TPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has• misused or abused the power of office held by him as public servant. The expression 'office' In the three sub-clauses of Section 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to he prosecuted and in respect of \\'.. hich a sanction to prosecute him is necessary by the competent authority, ~ntitled to remove him from that office which he has abused. This interr! elation between the office and its abuse if severed would render Section 6 devoid of any meaning.

And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority PARKASH SINGH BADAL v. STATE OF PUNJAB [PASAYAT, J. ] 219 who would he able to judge the action of the public servant before removing the bar, by granting sanction, to the taking ofthe cognizance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can he given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidc. ntal facts before according sanction.

A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella ofprotection ofGovernment servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State ofA. P. ,) [1979] 2 SCR 1007). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence ·are placed before him, to fudge whether a serious offence is committed or the prosecution is either frivolous or speculativt. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant.

That authority would he in a position to know what was the power conferred on the office which the public servant holds, how that power could he abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority comp~tent to remove the public servant from that office and the nature of the office he by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference o knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant', sanction which is entitled to remove the public servant against whom sanction is sought from the office. 24.

Now ifthe public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste ofhis time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to use. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious.

An illustration was posed to the learned Counsel that a Minister who is indisputably a public servant greased his palms by abusing his __ office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer wasin affirmative. But the very illustration would show that such cannot be the law.

Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. Ode can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 iPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was PARKASH SINGH BADAL v. STATE OF PUNJAB [PASAYAT, J. ] 221 entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed bysuch public servant/while abusing one office which he may have ceased to hold.

Such an interpretation in contrary to all canons of construction and leads to an absurd and product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rougue's charter. (See Davis & Sons Ltd. v. Atkins, [1977] Imperial Court Reports, 662) xx xx xx 26. Therefore upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him". Para 18 of the said judgment is also of considerable importance. It reads as follows: "18. Re. (a) The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption.

Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. } Adopting this.

rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it. " As is clear from a bare reading of the paragraph, this Court adopted a construction which is based on the avoidance of mischief rule. That being so, the plea that the effect of Section 6(2) of the . Pld Ac~ was not kept in view does not merit acceptance. Though a mere reference to a provision in all cases may not in all cases imply consciousness as to the effect of that provision the case at hand does not fall to that category. In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object of the statute and the need for interpretation in a particular way.

Foundation for the interpretation is found in para 24 of the judgment. With reference to Davis & Sons Ltd. v. Atkins (1977 Imperial Court Report 662) it was held that legislation must at all costs be interpreted in such a way that it would not operate as a rogue's charter. In Habibul/a Khan v. State ofOrissa andAnr. , [1995)2 SCC 437 it was held was as follows: "12. However, it was contended that while the Governor had given sanction to prosecute the Chief Minister when he continued to be an MLA in the case of R. S. Nayak v. A. R. Antulay, the question whether the sanction was necessary to prosecute an MLA as a public servant did not arise. It was, therefore, contended that although the offence alleged to have been committed was during the appellants' tenure as Ministers, the appellants continued to be MLAs and, therefore, as public servants on the day of the launching of prosecution and hence sanction of the Governor under Article 192 of the Constitution was necessary.

This question has also been answered in R. S. Nayak v. A. R. Antulay. Referring to this Court's decision in State (S. P. E. , Hyderabad) v. Air Commodore Kai/ash Chand this Court held: (SCC pp. 208-09, paras 25-26): "We would however, like to make it abundantly clear that if the two d.! cisions purport to lay down that even ifa public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for·corrupt motives, yet the sanction ofauthority competent to remove PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J. } 223 him from such latter office would be necessary before taking cognizance of the offence alleged to have been com!

llitted by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct Jaw and cannot be accepted as making a correct interpretation of Section 6. Therefore, upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him. " The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. ; However, there is an exception.

Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine ofState immunity. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own ple11Sure Section 19(1) will come in. Therefore, Section 19(1) is time and offence related. This Court in Shreekantiah Ramayya Munipalli v. The State ofBombay, reported in (1955) 1 SCR 1177 at pages 1186-1187 held as follows: "We have therefore first to concentrate on the word "offence". p Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established.

In the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did.

He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done : in the one event, it would be done in the discharge ofan official duty and in the other, in the purported discharge of it. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus "wilfully suffer" another person to use them dishonestly : section 405 of the Indian Penal Code. In both cases, the "offence" in his case would be incomplete without proving the official act.

" (underlined for emphasis) The main contention advanced by Shri Venugopal Learned senior counsel appearing for the appellant is that a public servant who continues I .. to remain so (on transfer) has got to be protected as long as he continues to hold his office. According to the learned counsel, even if the offending act is committed by a public servant in his former capacity and even if such a public servant has not abused his subsequent office still such a public servant needs protection of Section 19(1) of the Act. According to the learned counsel, the judgment of this Court in R. S. Nayak 's case (supra) holding that the subsequent position of the public servant to be unprotected was erroneous. According to the learned counsel, the public servant needs protection all throughout as long as he continues to be in the employment. The plea is clearly untenable as Section 19(1) of the Act is time and offence related. PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.

] 225 Section 19( I) of the Act has been quoted above. The underlying principle of Sections 7, 10, 11, 13 and 15 have been noted above. Each of the above Sections indicate that the public servant taking gratification (S. 7), obtaining valuable thing without consideration (S. 11), committing acts of criminal misconduct (S. 13) are acts performed under the colour of authority but which in reality are for the public servant's own pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if a public servant in his subsequent position is not accused of any such criminal acts then there is no question of invoking the mischiefrule. Protection to public servants under Section 19(l)(a) has to be confined to the time related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorized under Sections 7, I0, 11, 13 and 15.

This is the principle behind the test propounded by this court, namely, the test of abuse of office. Further, in cases where offences under the Act are concerned the effect of Section 19 dealing with question of prejudice has also to be noted. In Balakrishnan Ravi Menon v. Union ofIndia (SLP (Crl. ) No. 3960 of 2002 decided on 17. 9. 2002 a similar plea was rejected. It was inter alia held as follows: "Hence, it is difficult to accept the contention raised by U. R. Lalit, the learned senior counsel for the petitioner that the aforesaid finding given by this Court in Antulay's case is obiter. Further, under Section 19 of the PC Act, sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time when offence was alleged to have been committed.

The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. The word 'office' repeatedly used in Section 19 would mean the 'office' which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted. xx xx Clauses (a) and (b) of sub-section (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words "who is employed" in connected with the affairs of the Union or the State Government. If he is not employed then Section 19 nowhere provides for obtaining such sanction.

Further, under subsection (2) the question of obtaining sanction is relatable to the time of holding the office when the _offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, discharged or dismissed then the question of removing would not arise. " The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-Section (3) the stress is on "failure of justice" and that too "in the opinion of the Court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby.

Section 19( I) is a matter of procedure and does not go to root ofjurisdiction as observed in para 95 of the Narasimha Rao 's case (supra). Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act (Section 19(2) of the Act) question relates to doubt about authority to grant sanction and not whether sanction is necessary. In Halsbu~'s Laws ofEngland, 4th Edn. , Vol. 26 it is stated: "A decision is given per incuriam when the court has acted_in ignorance ofa previous decision ofits own or ofa court ofcoordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House ofLords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory. force. " In Govt. ofA. P. v. B.

Satyanarayana Rao, [2000] 4 SCC 262 it has been held as follows: "The rule of per incuriam can be applied where a court C'mits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any PARKASH SINGH BADALv. STATE OF PUNJAB [PASAYAT,J. ] 227 statute while deciding that issue. " "Jncuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" as held in Young v. Bristol Aeroplane Co. Ltd, [1944] 2 All ER 293 is avoided and ignored if it is rendered "in ignoratium ofa statute or other binding authority". Same has been accepted, approved and adopted by this . Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U. P. v.

Synthetics and Chemicals Ltd, [1991] 4 SCC 139. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. The above position was highlighted in Babu Parasu Kaikadi (dead) by Lrs. v. Babu (dead) thr. Lrs. , [2004] l SCC 681 and Sunita Devi v. State ofBihar and Anr. , [2005) 1 SCC 608. As regards applicability of Section 197 of the Code,. the position in law has been elaborately dealt with in several cases. In Bakhshish Singh Brar v. Smt. Gurmej Kaur andAnr. , AIR (1988) SC 257, this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:- • "It is necessary to protect the public servants in the discharge of their duties.

In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.

" The protection given under Section I97 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.

If in doing his official duty, he acted in excess ofhis duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it.

The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept of Section 197 does not immediately get attracted on institution of the complaint case. At this juncture, we may refer to P. Arulswami v. State ofMadras, AIR ( 1967) SC 776, wherein this Court held as urider: "...

It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section I97( I) of the Criminal Procedure Code; nor even every act done by him while he > is actually engaged in the performance of his official duties; but if the act complained ofis directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J. ) 229 is important and if it falls within the scope and range of his official duties the protection contemplated by Section I97 of the Criminal it is unconnected with the filed official duty there can be no protection. It is only when it is the either within the scope of the official duty or in excess of it that the protection is claimable. Section I97(1) and (2) of the Code reads as under: "197.

(I) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction ofthe 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 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; (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.

* * * (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. " The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 ofthe Code, either on receipt ofa complaint, or upon a police report or upon infonnation received fro