1995 JTR(SC) 185
1995 1 AICLR 649 ; 1995 AIR(SC) 1124 ; 1995 AIR(SCW) 1161 ; 1995 1 CCR(SC) 117 ; 1995 CriLR 206 ; 1995 1 Crimes(SC) 567 ; 1995 CrLJ 2071 ; 1995 2 JT 1 ; 1995 2 LLN 245 ; 1995 2 RCR(Cri) 604 ; 1995 1 Scale 419 ; 1995 2 SCC 437 ; 1995 SCC(Cri) 382 ; 1995 1 SCR 819 ; 1995 1 UJ 536 ; 1995 KHC 791 ; 1995 1 KLT(Online) 1029
SUPREME COURT OF INDIA
P.B. SAWANT AND G.N. RAY, JJ.
Habibulla Khan, Appellant
Versus
State of Orissa and another, Respondents.
Criminal Appeals Nos. 212 of 1995, with 213-14 and 215 of 1995 (arising out of S.L.P (Cri.)Nos 1563 of 1993 and 2259-60 and 2261 of 1994)
Decided on 2-2-1995.
Advocates appeared
Mr. Raju Ramachandran, Mr. Pookkatt, Mr. Kailash Vasdev and Mr. Vinod Bhagat, Advocates, for Appellants; Mr. P.P. Rao and Mr. N.S. Hegde, Sr. Advocates, Mr. R.K. Mehta, Advocate, with them, for Respondents.
Act
Referred
:ORISSA SPECIAL COURTS ACT : S.5(1)
ORISSA SPECIAL COURTS RULES : R.2(1)(f)
PREVENTION OF CORRUPTION ACT : S.19
(A) The Prevention of Corruption Act defines an offence of criminal misconduct under clause (e) as the possession of pecuniary resources or property disproportionate to known sources of income by a public servant. The Orissa Special Courts Act, read with its Rules, provides that a person holding high political office includes members of the Council of Ministers and the Chief Minister, and that a declaration by the State Government regarding prima facie evidence of such an offence by a person who held high public or political office triggers a special procedure. The present prosecutions concern alleged criminal misconduct during the appellants tenure as Ministers, and the Special Courts Act mandates that only a declaration under Section 5(1) is required for launching the prosecutions, not any additional sanction under Section 19.
(B) An MLA is a public servant within the meaning of the special statute; however, sanction under Section 19 is not required when the prosecutions are based on misconduct during the period the accused held ministerial office, as the provision on liability relates to the office abused and the competent authority for removal is the one connected to that specific office. Prosecution can proceed without sanction if the accused is no longer a public servant of the office alleged to have been misused.
Facts of the case:
The appellants were Ministers in the Council of Ministers of Orissa and are alleged to have possessed property disproportionate to their known sources of income during their ministerial tenure. After the change of government, they became Members of the Legislative Assembly and faced criminal prosecution under the Prevention of Corruption Act through special courts. They challenged the necessity of sanction, contending that as sitting MLAs they required gubernatorial sanction, which was denied.
Findings of Court:
The Special Court and the High Court held that an MLA is a public servant, but that no sanction was necessary because the offences related to their time as Ministers and the provisions of Section 19 of the Special Courts Act were inapplicable. The High Court also clarified that sanction is required only for the office that is alleged to have been misused, and not for any other office held later.
Issues:
Whether sanction is required to prosecute former Ministers for alleged criminal misconduct committed during their ministerial tenure when they later hold an entirely different public office.
Ratio Decidendi:
The offences alleged were committed while the appellants held ministerial office, and the procedure under the Special Courts Act does not require any sanction for prosecution. Even if MLAs are public servants, Section 19 is not engaged because the prosecutions are not based on their MLA conduct and the competent authority for removal under Section 19 is the one connected to the abused office, which is no longer held by the appellants.
Result:
The appeals are dismissed, and the prosecutions under the Prevention of Corruption Act are allowed to proceed.
(A) The Prevention of Corruption Act defines an offence of criminal misconduct under clause (e) as the possession of pecuniary resources or property disproportionate to known sources of income by a public servant. The Orissa Special Courts Act, read with its Rules, provides that a person holding high political office includes members of the Council of Ministers and the Chief Minister, and that a declaration by the State Government regarding prima facie evidence of such an offence by a person who held high public or political office triggers a special procedure. The present prosecutions concern alleged criminal misconduct during the appellants tenure as Ministers, and the Special Courts Act mandates that only a declaration under Section 5(1) is required for launching the prosecutions, not any additional sanction under Section 19.
(B) An MLA is a public servant within the meaning of the special statute; however, sanction under Section 19 is not required when the prosecutions are based on misconduct during the period the accused held ministerial office, as the provision on liability relates to the office abused and the competent authority for removal is the one connected to that specific office. Prosecution can proceed without sanction if the accused is no longer a public servant of the office alleged to have been misused.
Facts of the case:
The appellants were Ministers in the Council of Ministers of Orissa and are alleged to have possessed property disproportionate to their known sources of income during their ministerial tenure. After the change of government, they became Members of the Legislative Assembly and faced criminal prosecution under the Prevention of Corruption Act through special courts. They challenged the necessity of sanction, contending that as sitting MLAs they required gubernatorial sanction, which was denied.
Findings of Court:
The Special Court and the High Court held that an MLA is a public servant, but that no sanction was necessary because the offences related to their time as Ministers and the provisions of Section 19 of the Special Courts Act were inapplicable. The High Court also clarified that sanction is required only for the office that is alleged to have been misused, and not for any other office held later.
Issues:
Whether sanction is required to prosecute former Ministers for alleged criminal misconduct committed during their ministerial tenure when they later hold an entirely different public office.
Ratio Decidendi:
The offences alleged were committed while the appellants held ministerial office, and the procedure under the Special Courts Act does not require any sanction for prosecution. Even if MLAs are public servants, Section 19 is not engaged because the prosecutions are not based on their MLA conduct and the competent authority for removal under Section 19 is the one connected to the abused office, which is no longer held by the appellants.
Result:
The appeals are dismissed, and the prosecutions under the Prevention of Corruption Act are allowed to proceed.
KAILASH VASUDEV, N.S.HEGDE, P.P.Rao, PUKKATT, R.K.MEHTA, RAJU RAMACHANDRAN, Vinod Bhagat
JUDGMENT
SAWANT, J :—Leave granted.
A common question of law, viz., whether sanction is required for launching a criminal prosecution against the appellants, has been raised in these appeals.
2. The Orissa Special Court Act, 1990 (hereinafter referred to as the "Special Courts Act") which came into force on 27th July,1992 after receiving the assent of the President, provides for constitution of special Courts of offences and for the confiscation of property involved in such offences. Section 2(d) of that Act defines "offence" to mean an offence of criminal misconduct within the meaning of clause (e) of sub-section(1) of Section 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act"). Section 5(1) of the Special Courts Act, as amended by the Amendment Act of 1993 reads as follows;
"5(1). If the State Government is of the opinion that there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa, the State Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion".
Rule 2(1)(f)(i) of the Orissa Special Courts Rules (hereinafter referred to as the "Rules") reads as follows :
"2(1)(f). "Person holding high political office" includes -
(i) members of the Council of Minister and the Chief Minister".
3. Clause (e) of sub-section(1) of Section 13 of the Act defines "offence of criminal misconduct" as follows :
"13, Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct -
x x x x x x
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful sources and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
It is not disputed that all the appellants were Ministers in the Council of Ministers of the respondent-State of Orissa during the period in which they were alleged to have been found in possession of pecuniary resources or property disproportionate to their known sources of income. Subsequently, they ceased to be Ministers due to the change of Government and thereafter were elected as the Members of the Legislative Assembly of the State ("MLA" for short). They continued to be such Members till the prosecutions were launched against them for the said criminal misconduct under Section 13(1)(e) of the Act.
4. Shri Habibulla Khan, the appellant in the appeal arising out of SLP No.1563 of 1993 filed an application before the Special Court on 25th July,1991 for recalling the orders of the cognizance of the offence on the ground that at the time of taking the cognizance, he was an MLA and as such as public servant within the meaning of Section 2(c)(vii) of the Act and, therefore, he could not be tried for the offence under Section 13(1)(e) of the Act without the sanction of the Governor of the State under Section 19 of the Act who according to him was competent to remove an MLA under Article 192 of the Constitution.On 18th January, 1991 the Special Court dismissed the application holding that an MLA was not a public servant and further the Governor was not competent to remove an MLA and hence no sanction was required under the said provision. This order was assailed by the appellant before the High Court under Section 482 of the Code of Criminal Procedure on 22nd January, 1993. The learned single Judge of the High Court referred the matter to Division Bench which dismissed the matter by its impugned judgment of 5th May, 1993 holding that an MLA is a public servant within the meaning of Section 2(c)(viii) of the Act; but the power of "removal" mentioned in Section 19 of the Act partakes the Character of punishment and the Governor has no power of removal of an MLA under Article 192 of the Constitution by way of punishment. There was distinction between the concept of "removal" as used in Section 19 of the Act and that of "disqualification" as used in Article 192 of the Constitution. Since the Governor was not the authority to remove an MLA, the sanction was not necessary under Section 19 of the Act.
The appellant, Nagarjuna Pradhan in appeal arising out of SLP No.2261 of 1994 raised similar plea on 17 th August, 1993 but a long time after the prosecution was launched against him and 31 prosecution witnesses were examined.
Similarly, the appellant, Rama Chandra Ulaka in appeals arising out of SLP No. 2259-60 of 1994 raised the same plea belatedly in the two prosecutions launched against him after 16 and 18 prosecution witnesses respectively were examined in those cases.
5. The appellants are being prosecuted for the criminal misconduct which they are alleged to have committed during the period they were holding high political office within the meaning of Section 5(1) of the Special Courts Act read with Rule 2(1)(f)(i) of the Rules made under that Act. The Special Court Act incorporates the definition of "criminal misconduct" given in Section 13(1) (e) of the Act. The procedure for prosecution to be followed, however, is as laid down under the special Courts Act. All that the Special Courts Act requires for launching a criminal prosecution against a person holding high political office is that the State Government should make a declaration under Section 5(1) of that Act that there is prima facie evidence of the commission of an offence by a person who held high public or political office in the State. Hence the provisions of Sections 19 of the Act do not come into the picture in the present case. That being so, no sanction of the Governor or any other authority is necessary for launching the criminal prosecutions in question.
6. Assuming, however, that the procedure to be followed before launching criminal prosecution is that under the Act, the admitted facts are that the appellants are being prosecuted for the misconduct alleged to have been committed by them during their tenure as the Members of the Council of Ministers and not in their capacity as the MLAs. Hence the provisions of Section 19 of the Act are inapplicable to the facts of the present case as held in R.S. Nayak v.A.R. Antulay (1984)2 SCR 495 : (AIR 1984 SC 684).
The second question is whether the appellants could be prosecuted for the offence which they are alleged to have committed during their tenure as ministers after they ceased to be the ministers.This question has also been answered by two decisions of this Court. In S. A.Venkatraman v. The State (1958) SCR 1037 (1040), it is held while construing similar provision of Section 6 of the predecessor of the present Act which provision was similar to the provision of Section 19 of the present Act that no sanction was necessary for the prosecution of the appellant in that case, as he was not a public servant at the time of the taking of cognizance of the offence. The Court there observed as follows:
"In construing the provisions of a statute it is essential for a Court, in the first instance, to give effect to the natural meaning of the words used therein, if those words are clear enough. It is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature. Where a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition. The words in Section 6(1) of the Act are clear enough and must be given effect to. The more important words in Clause (c) of Section 6(1) are "of the authority competent to remove him from his office". A public servant who has ceased to be a public servant is not a person removable from any office by competent authority. The conclusion is inevitable that at the time a Court is asked to take cognizance not only must the offence have been committed by a public servant but the person accused must still be a public servant removable from his office by a competent authority before the provisions of Section 6 can apply.
Similarly, a Constitution Bench in Veeraswami v. Union of India, (1991) 3 SCC 655, while construing the provision of the same Section 6 of the Prevention of Corruption Act, 1947 held that no sanction under Section 6 of that Act was necessary for prosecution of the appellant in that case since he had retired from service on attaining the age of superannuation and was not a public servant on the date of filing the Charge-Sheet.
7. 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 (AIR 1984 SC 684) (supra), the question whether the sanction was necessarily 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 servant 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 (AIR 1984 SC 684) (supra). Referring to this Courts decision in The State of (S.P.E. Hyderabad) v. Air Commodore, Kailash Chand, (1980) 2 SCR 697, this Court.....
"..... We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a 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 of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed 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 law 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." (AIR 1984 SC 684 at p. 698).
Assuming therefore, that the MLA is a public servant within the meaning of Section 2(c)(viii) of the Act, in view of the aforesaid proposition of law laid down in R.S.Nayak v. A. R. Antulay (AIR 1984 SC 684) (supra), this contention also does not merit any consideration.
In view of the above, the appeals are dismissed.
Appeals dismissed.
For Citation: AIR 1995 SC 1124
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