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CASE NO.: Appeal (crl.)  1276 of 2006

PETITIONER: Lalu Prasad @ Lalu Prasad Yadav

RESPONDENT: State of Bihar Through CBI (AHD) Patna  

DATE OF JUDGMENT: 06/12/2006

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5865 of 2005) WITH

CRIMINAL APPEAL NO. 1278 OF 2006 (Arising out of SLP (Crl.) No. 5866 of 2005)

Dr. ARIJIT PASAYAT, J

Leave granted.

In both these appeals the basic question raised relates to the  validity of sanction to prosecute the appellants for offence  punishable under Section 13(1)(e) read with Section 13(2) of the  Prevention of Corruption Act, 1988 (in short the ’Act’). Sanction has  been accorded both under the provisions of Section 19(1)(b) of the  Act and Section 197 of the Code of Criminal Procedure, 1973 (in  short the ’Code’).  

Plea relating to cognizance of  the offence is that previous  sanction is necessary under the Act if the public servant does not  hold the same office which he allegedly abused on the date when  the cognizance was taken by the Court. Stand of the appellants is  that even though a public servant does not hold the same office and  holds some other office, then also sanction is necessary. It is stated  in that context that the decision in R.S. Nayak v A.R. Antulay (1984  (2) SCC 183)  is per incuriam because the effect of Section 19(2) of  the Act had not been considered. It is also submitted that the effect  of the recommendations made by the Law Commission in its 41st  report which necessitated sanction in terms of Section 197 of the  Code extending the protection of sanction for a retired public  servant as well should have been also extended under Section 6(1)  of the Prevention of Corruption Act, 1947 (in short the ’1947 Act’)  corresponding to Section 19(1) of the Act. This according to us is a  case of causus omissus.         The decision in R. S. Nayak’s case (supra)  cannot be regarded as a binding precedent in respect of the issues  which did not relate to the three questions which were required to  be decided in that case. The order rejecting the plea of lack of  sanction and the jurisdiction is required to be passed by a speaking  order. The Secretary to the Government had no jurisdiction to sign  the sanction order on the instructions of the Governor.  Therefore,  the so-called sanction of the Governor has no sanctity in the eye of  law.  There is no material to show that the alleged dis-proportionate  assets were relatable to a period when Smt. Rabri Devi was the  Chief Minister. At that time she was also either holding the office of

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MLC or MLA and, therefore, the sanction granted has no validity.  

       It is to be noted that in Lalu Prasad Yadav’s case the sanction  had been given by the Governor. The prosecution did not obtain the  sanction separately so far as the appellant Rabri Devi is concerned  as she was only a house wife and not a public servant during the  relevant period. In the sanction  accorded in respect of the  appellant- Lalu Prasad Yadav, it has been expressly mentioned that  the acts of Smt. Rabri Devi amounted to aiding and abetting of  commission of offence under Section 13(1)(e)  by her husband Lalu  Prasad Yadav and she was thus liable to be prosecuted for offence  punishable under Sections 107 and 109 of the Indian Penal Code,  1860 (in short the ’IPC’).  

       One of the submissions made by Shri P.P. Rao, learned senior  counsel appearing for the appellants is that the courts below had  erroneously come to the conclusion that both in the case of  discharge and for framing of charge no reasons are necessarily to be  recorded. It is submitted that report of Dr. Bakshi Tekchand  Committee which formed the basis of inserting Sub-section (2) of  Section 6 of 1947 Act admits of no doubt and  the same envisages  two offices being held by the  public servants one at the time of  alleged offence and other at the time of taking cognizance.   

       Learned counsel for the respondent-State submitted that none  of the pleas raised have any substance in law.  

       So far as the plea relating to causus omissus is concerned the  position in law is as follows:

       Two principles of construction \026 one relating to causus  omissus and the other in regard to reading the statute as a whole \026  appear to be well settled. Under the first principle a causus omissus  cannot be supplied by the Court except in the case of clear  necessity and when reason for it is found in the four corners of the  statute itself but at the same time a causus omissus should not be  readily inferred and for that purpose all the parts of a statute or  section must be construed together and every clause of a section  should be construed with reference to the context and other clauses  thereof so that the construction to be put on a particular provision  makes a consistent enactment of the whole statute. This would be  more so if literal construction of a particular clause leads to  manifestly absurd or anomalous results which could not have been  intended by the Legislature. "An intention to produce an  unreasonable result", said Danackwerts, L.J. in Artemiou v.  Procopiou (1966 1 QB 878), "is not to be imputed to a statute if  there is some other construction available". Where to apply words  literally would "defeat the obvious intention of the legislature and  produce a wholly unreasonable result" we must "do some violence  to the words" and so achieve that obvious intention and produce a  rational construction. (Per Lord Reid in Luke v. IRC (1963 AC 557)  where at p. 577 he also observed: "this is not a new problem,  though our standard of drafting is such that it rarely emerges".  

It is then true that, "when the words of a law extend not to an  inconvenience rarely happening, but due to those which often  happen, it is good reason not to strain the words further than they  reach, by saying it is causus omissus, and that the law intended  quae frequentius accidunt." "But," on the other hand, "it is no  reason, when the words of a law do enough extend to an  inconvenience seldom happening, that they should not extend to it  as well as if it happened more frequently, because it happens but  seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347. A  causus omissus ought not to be created by interpretation, save in  some case of strong necessity. Where, however, a causus omissus

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does really occur, either through the inadvertence of the legislature,  or on the principle quod semel aut bis existit proetereunt  legislators, the rule is that the particular case, thus left unprovided  for, must be disposed of according to the law as it existed before  such statute - Causus omissus et oblivioni datus dispositioni  communis juris relinquitur; "a causus omissus," observed Buller, J.  in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court  of law, for that would be to make laws."  The principles were  examined in detail in Maulavi Hussein Haji Abraham Umarji v.  State of Gujarat and Anr. (JT 2004(6) SC 227).  

The golden rule for construing all written instruments has  been thus stated: "The grammatical and ordinary sense of the  words is to be adhered to unless that would lead to some absurdity  or some repugnance or inconsistency with the rest of the  instrument, in which case the grammatical and ordinary sense of  the words may be modified, so as to avoid that absurdity and  inconsistency, but no further" (See Grey v. Pearson (1857 (6) H.L.  Cas. 61). The latter part of this "golden rule" must, however, be  applied with much caution. "if," remarked Jervis, C.J., "the precise  words used are plain and unambiguous in our judgment, we are  bound to construe them in their ordinary sense, even though it  lead, in our view of the case, to an absurdity or manifest injustice.  Words may be modified or varied where their import is doubtful or  obscure. But we assume the functions of legislators when we depart  from the ordinary meaning of the precise words used, merely  because we see, or fancy we see, an absurdity or manifest injustice  from an adherence to their literal meaning" (See Abley v. Dale 11,  C.B. 378).

       The plea that the effect of Law Commission’s report and  Dr.   Bakshi Tekchand report has not been considered by the Legislature  and therefore this is a case of "causus omissus" is clearly without  any substance. This Court had occasion to deal with a similar plea  in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411). It  has been noted as follows:

"13. It must be remembered that in spite of  bringing such a significant change to Section  197 of the Code in 1973, Parliament was  circumspect enough not to change the wording  in Section 19 of the Act which deals with  sanction. The reason is obvious. The sanction  contemplated in Section 197 of the Code  concerns a public servant who "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", whereas the  offences contemplated in the PC Act  are those  which cannot be treated as acts either directly  or even purportedly done in the discharge of  his official duties. Parliament must have  desired to maintain the distinction and hence  the wording in the corresponding provision in  the former PC Act was materially imported in  the new PC Act, 1988 without any change in  spite of the change made in Section 197 of the  Code."  

It may be noted that Section 197 of the Code and Section 19 of the  Act operate in conceptually different fields. In cases covered under  the Act, in respect of public servants the sanction is of automatic  nature and thus factual aspects are of little or no consequence.   Conversely, in a case relatable to Section 197 of the Code, the  substratum and basic features of the case have to be considered to

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find out whether the alleged act has any nexus to the discharge of  duties. Position is not so in case of Section 19 of the Act.  

       The plea of causus omissus as raised by learned counsel is at  variance with the stand taken in respect of a similar plea in  Parkash Singh Badal’s case. In that case the stand of learned  counsel for the appellant was that the provision does not exist and  has to be read into the statute and since the effect of Section 19(2)  of the Act has not been considered in R.S. Nayak’s case (supra)  therefore it is a case of per incuriam. We have examined the issue  in the said case and have turned out the plea.  

       In Shivendra Kumar v. State of Maharashtra (2001 (9) SCC  303) it was inter alia observed as follows:                   "11. On a perusal of Section 6 of the Act, it is  clear that previous sanction is mandatorily  required for launching prosecution against a  public servant who is alleged to have  committed an offence punishable under  Section 161 or 164 or 165 IPC or under sub- section (2) or sub-section (3-A) of Section 5 of  the Act. Indeed the language of the section is  in the form of a prohibition against any court  taking cognizance of such offences except with  previous sanction. The authority/authorities to  grant such sanction are specified in clauses  (a), (b) and (c) of sub-section (1). Under clause  (a) it is laid down that 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 sanction of the Central  Government, of the Central Government.  Under clause (b), it is  provided that in the  case of a person who is employed in  connection with the affairs of a State and is  not removable from his office save by or with  the sanction of the State Government, of the  State Government; and under clause (c) in the  case of any other person, of the authority  competent to remove him from his office. The  difference in the language used in clauses (a)  and (b) on the one hand and clause (c) on the  other, cannot be lost sight of. While in the  former, the Central Government or the State  Government, as the case may be, is to grant  the sanction, under clause (c) it is specifically  provided that the authority competent to  remove the delinquent public servant from  office is one who is competent to grant the  sanction. As noted earlier, Section 6(1)(b) is  applicable in the present case. The said  provision does not specify any particular  officer as the competent authority to grant  sanction. It only states  that the State  Government, without whose sanction the  delinquent officer cannot be removed from  office/post, is the competent authority to pass  the order of sanction. From the sanction order,  which is available on the record, it is clear that  the Secretary, Medical Education Department  passed/signed the order of sanction of  prosecution against the appellant on behalf of  the Governor. It is not the case of the appellant  that the Secretary had no  authority to act on

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behalf of the State Government. It follows that  the order of sanction in the present case was  passed by the Secretary of the Medical  Education Department with the authority of  the Governor of the State Government. No  material on record has been brought to our  notice to show that the Governor had issued  any order authorising an officer other than the  Secretary of the Department to pass order of  sanction in the case. If that was  the case, then  the appellant should have produced the order  or at least raised the contention that an officer  other than the Secretary had been authorised  for that purpose. No such material appears to  have been produced. When the Secretary was  being examined in support of the sanction  order passed by him such question was also  put to him. Reliance is placed on a sentence in  his deposition that he is not the authority to  remove the appellant. This statement, without  further material, cannot form the basis of the  contention that the Secretary, Medical  Education Department was not competent to  pass the order of sanction on behalf of the  State Government. The Government functions  through its officers. The Secretary is the Head  of the Department and the principal officer  representing the State Government in the  Department concerned. Unless specific  material is produced to show that some other  officer was competent to deal with the matter  of sanction of prosecution against the  appellant it can be reasonably assumed that  the Secretary of the Department is the  competent authority to pass the order of  sanction. The object of Section 6 or for that  matter Section 197 of the Criminal Procedure  Code, which is a pari materia provision, is that  there should be no unnecessary harassment of  a public servant; the idea is to save the public  servant from the harassment which may be  caused to him if each and every aggrieved or  disgruntled person is allowed to institute a  criminal complaint against him. The protection  is not intended to be an absolute and  unqualified immunity against criminal  prosecution. In a case where it is seen that a  sanction order has been passed by an  authority who is competent under the law to  represent the State Government, the burden is  heavy on the party who challenges the  authority of such order to show that the  authority competent to pass the order of  sanction is somebody else and not the officer  who has passed the sanction order in  question."

                                               (underlined for emphasis)

That brings us to another question which though may not have any  relevance after the rejection of the principal plea, has to be  considered because such issues frequently come up for  consideration.  

       The question raised relating to recording of reasons at the time

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of framing of charge is different from a case of opinion on the basis  of which an order of discharge of the accused is passed. Sections  227 and 228 of the Code with regard to discharge of accused and  framing of charges against the accused respectively in a case triable  by Court of Session; Sections 239 and 240 concern  discharge and  framing of charge in case of warrant,  triable by the Magistrate  whereas Section 245 deals with  discharge and framing of charges  in cases instituted other than on the police report, indicates the  difference.  The relevant provisions read as follows:

"227-Discharge: If upon consideration of the  record of the case and the documents  submitted therewith, and after hearing the  submissions of the accused and the  prosecution in this behalf, the Judge considers  that there is no sufficient ground for  proceeding against the accused, he shall  discharge the accused and record his reasons  for so doing."

"228.-Framing of Charge-(1) If, after such  consideration and hearing as aforesaid, the  Judge is of opinion that there is ground for  presuming that the accused has committed an  offence which-

(a)     is not exclusively triable by the Court of  Session, he may, frame a charge against  the accused and, by order, transfer the  case for trial to the Chief Judicial  Magistrate or any other Judicial  Magistrate of the first class and direct the  accused to appear before the Chief  Judicial Magistrate, or, as the case may  be, the Judicial Magistrate of the first  class, on such date as he deems fit, and  thereupon such Magistrate shall try the  offence in accordance with the procedure  for the trial of warrant-cases instituted on  a police report;

(b)     is exclusively triable by the Court, he  shall frame in writing a charge against  the accused.

(2)     Where the Judge frames any charge  under clause (b) of sub-section (1), the  charge shall be read and explained to the  accused and the accused shall be asked  whether he pleads guilty of the offence  charged or claims to be tried."

 "239. When accused shall be discharged.\027(l)  If, upon considering the police report and the  documents sent with it under Section 173 and  making such examination, if any, of the  accused as the Magistrate thinks necessary  and after giving the prosecution and the  accused an opportunity of being heard, the  Magistrate considers the charge against the  accused to be groundless, he shall discharge  the accused, and record his reasons for so  doing."

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"240. Framing of charge.\027(l) If, upon such  consideration examination, if any, and  hearing, the Magistrate is of opinion that there  is ground for presuming that the accused has  committed an offence triable under this  Chapter, which such Magistrate is competent  to try and which, in his opinion, could be  adequately punished by him, he shall frame in  writing a charge against the accused.

(2) The charge shall then be read and  explained to the accused, and he shall be  asked whether he pleads guilty of the offence  charged or claims to be tried."

"245: When accused shall be discharged(1) If  upon taking all the evidence referred to in  Section 244 the Magistrate considers, for  reasons to be recorded, that  no case against  the accused has been made out which, if  unrebutted, would warrant his conviction, the  Magistrate shall discharge him.  

(2)     Nothing in this section shall be deemed to  prevent a Magistrate from discharging the  accused at any previous stage of the case if, for  reasons to be recorded by such Magistrate, he  considers the charge to be groundless."  

This Court in State of Bihar  v. Ramesh Singh  (AIR 1977 SC 2018)  observed as follows:

"Reading the two provisions together in  juxtaposition, as they have got to be, it would  be clear that at the beginning and the initial  stage of the trial the truth, veracity and effect  of the evidence which the prosecutor proposes  to adduce are not to be meticulously judged.  Nor is any weight to be attached to the  probable defence of the accused. It is not  obligatory for the Judge at that stage of the  trial to consider in any detail and weigh in a  sensitive balance whether the facts, if proved,  would be incompatible with the innocence of  the accused or not. The standard of test and  judgment, which is to be finally applied before  recording a finding regarding the guilt or  otherwise of the accused not exactly to be  applied at the stage of deciding the matter  under Sections 227 or Section 228 of the Code.   At that stage the Court is not to see whether  there is sufficient ground for conviction of the  accused or whether the trial is sure to end in  his conviction."   

       In Kanti Bhadra Shah and Anr. v. State of West Bengal (2000  (1) SCC 722) again the question was examined. It was held that the  moment the order of discharge is passed it is imperative to record  the reasons. But for framing of charge the Court is required to form  an opinion that  there is ground for presuming  that the accused  has committed the offence. In case of discharge of the accused the  use of the expression "reasons" has been inserted in Sections 227,  239 and 245 of the Code. At the stage of framing of a charge the

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expression used is "opinion". The reason is obvious. If the reasons  are recorded in case of framing of charge, there is likelihood of  prejudicing the case of the accused put on trial. It was inter alia  held as follows:

"It is pertinent to note that this section  required a Magistrate to record his reasons for  discharging the accused but there is no such  requirement if he forms the opinion that there  is ground for presuming that the accused had  committed the offence which he is competent  to try. In such a situation he is only required  to frame a charge in writing against the  accused.   

       Even in cases instituted otherwise than  on a police report the Magistrate is required to  write an order showing the reasons only if he  is to discharge the accused. This is clear from  Section 245. As per the first sub-section of  Section 245, if a Magistrate, after taking all the  evidence considers that no case against the  accused has been made out which if  unrebutted would warrant his conviction, he  shall discharge the accused. As per sub- section (2) the Magistrate is empowered to  discharge the accused at any previous stage of  the case if he considers the charge to be  groundless. Under both sub-sections he is  obliged to record his reasons for doing so. In  this context, it is pertinent to point out that  even in a trial before a Court of Session, the  Judge is required to record reasons only if he  decides to discharge the accused (vide Section  227 of the Code). But if he is to frame the  charge he may do so without recording his  reasons for showing why he framed the  charge."

       But where the question of jurisdiction is raised and the trial  Court is required to adjudicate that issue,  it cannot be said that  reasons are not to be recorded. In such a case reasons relate to  question of jurisdiction and not necessarily to the issue relating to  framing of charge. In such a case reasons dealing with a plea  relating to jurisdiction have to be recorded.  

In the ultimate, analysis in these appeals is that they are  without merit and are dismissed.