http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 48  

PETITIONER: R. S. NAYAK

       Vs.

RESPONDENT: A. R. ANTULAY

DATE OF JUDGMENT16/02/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR  684            1984 SCR  (2) 495  1984 SCC  (2) 183        1984 SCALE  (1)198  CITATOR INFO :  RF         1984 SC 718  (2)  F          1985 SC1655  (4,5)  RF         1986 SC2045  (36)  RF         1987 SC1140  (3)             1988 SC1531  (145)  RF         1992 SC1531  (23)  RF         1992 SC1701  (7,9)

ACT:      Prevention of  Corruption Act  1947-S. 6-Interpretation of. Whether court can take congizance of offences enumerated in s. 6 against public servant without sanction of competent authority-Which is  competent authority-Which  is  competent authority to  give sanction-What  is relevant  date on which sanction be  there-For attracting  s. 6  accused should be a public servant both on dat of offence and on date when court takes congizance  of offence.  In cases  where accused holds several offices  each one of which makes him public servant- Wether sanction  of competent authorities of all the offices necessary or  whether sanction  of that  competent authority alone under  which public  servant has  misuse his office is sufficient.      Indian Penal  Code s.21  clauses (3).(7)  and (12) (a)- Definition of  ’public servant’-Scope  of-Whether Member  of State Legislative  Assembly a public servant. Expressions or pay in the pay of and Government used in s. 21 explained.      Construction  of  Statutes-Rule  of-Construct  on  must advance object  of Act-Court  must give  effect  to  natural meaning of  words-In case  of ambiguity court must ascertain intention of  legislature behind  Act-Court can take help of external aids-While  constructing ancient  statute court can look at surrounding circumstances when statue was enacted.      Words and Phrases- Words ’or an ‘pay, meaning of Phrase ’in the pay of, -Explained.

HEADNOTE:      The appellant,  R.S. Nayak,  filed a  complaint against the respondent,  A.R. Antualy,  a public  servant being  the Chief Minister  of Maharashtra  State  under  ss.  161,  165

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 48  

I.P.C. and  s. 5  of the  Prevention of Corruption Act, 1947 (1947 Act)  alleging abuse  of office of Chief Minister. The complaint was  rejected on  account of  absence of necessary sanction of  the Governor of Maharashtra State under s. 6 of the 1947 Act to prosecute the respondent. After the Governor issued necessary  sanction,  the  appellant  filed  a  fresh complaint  in   the  Court  of  Special  Judge  against  the respondent on  the same  grounds. However,  on the  date  of filing fresh  complaint the  respondent had already resigned as Chief Minister. The respondent contended that the Special Judge had  no jurisdiction  to try  him under  s. 7  of  the Criminal Law  Amendment Act,  1952 and  that  no  cognizance could be  taken on  private  complaint.  The  Special  Judge rejected both  the contentions.  In the  meantime the  State Government issued  a  notification  under  s.  7(2)  of  the Criminal Law  Amendment Act,  1752 under  which the case was transferred to another Special Judge. In a criminal revision application filed  by the  respondent against  the order  of earlier 496 Special Judge,  a Division Bench of the High Court held that the Social  Judge had jurisdiction to try the respondent and that the private complaint was maintainable. When the latter Special Judge  proceeded with  the case the respondent filed an application  for his  discharge on  the grounds  that the charge against  him was  baseless and that he being a Member of legislative  Assembly (M.L.A) requisite sanction under s. 6  of   the  1947  Act  was  necessary.  The  Special  Judge discharged the  respondent holding that the respondent being M.L.A was  a public  servant within  s. 21 (12)(a) of I.P.C. and hl  the absence  of  the  sanction  of  the  Legislative Assembly he  could not  take cognizance  of offence.  .  The Special Judge also held that. the material date for deciding the applicability  of s.  6 of  the 1947 Act was the date on which the Court was asked to take cognizance of the offence. The appellant  challenged the  order of the Special Judge in this Appeal.      The questions which arose for consideration were:-      (a)  That is  the relevant date with reference to which           a  valid  sanction  is  a  pre-requisite  for  the           prosecution  of  a  public  servant  for  offences           enumerated in s. 6 of the 1947 Act ?      (b)  If the accuse holds several offices occupying each           of which  makes him  a public servant, is sanction           of each  one of the competent authorities entitled           to remove him from each one of the offices held by           him necessary  and  if  anyone  of  the  competent           authorities fails  or declines  to grant sanction,           is the  Court precluded  or prohibited from taking           cognizance of  the offence  with which  the public           servant is  charged, or  is it implicit in s. 6 of           the 1947  Act  that  sanction  of  that  competent           authority alone  is necessary which is entitled to           remove the public servant from the office which is           alleged to have been abused or misused for corrupt           motives ?      (c)  Is M.L.A.  a public. servant within the meaning of           the expression  in clauses 12(a), 3 and 7 of s. 21           I.P.C. ?      (d)  Is sanction  as contemplated  by s.  6 of the 1947           Act necessary for prosecution of M.L.A. and if so,           which is  the sanctioning  authority competent  to           remove M.L.A.  from the  office of  Member or  the           Legislative Assembly ?      Allowing the appeal.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 48  

^      HELD: 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 provisions. In  the event  of  an  ambiguity  of  the  plain meaning of  the  words  used  in  the  statute  being  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.  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. [521 A-C]      The basic purpose underlying all canons of construction is the ascertainment 497 with reasonable  certainty of the intention of Parliament in enacting the  legislation. A For this purpose why should the aids which Parliament availed of such as report of a special committee preceding  the enactment,  existing state  of law, the environment  necessitating enactment of legislation, and the object  sought to  be achieved, be denied to court whose function is  primarily to  give effect to the real intention of the  Parliament in  enacting the legislation. Such denial would deprive  the court  of a  substantial and illuminating aid to  construction. Therefore,  departing from the earlier English  decisions,  the  reports  of  the  committee  which preceded the  enactment of  a legislation,  reports of Joint Parliamentary Committee  report of  a commission  set up for collecting  information   leading  to   the  enactment   are permissible external aids to construction. [527-A; D-E]      In construing  a statute  more especially  the  ancient statute, the court may look at the surrounding circumstances when the  statute was  enacted. The  construction of ancient statutes may  be eludicated  by what  in the language of the courts is called contemporanea expositio, that is, by seeing how they  were understood at the time when they were passed. [528F-G]      Standard dictionaries as a rule give in respect of each word as many meanings in which the word has either been used or it  is likely  to  be  used  in  different  contexts  and connections.  While  it  may  be  permissible  to  refer  to dictionaries to  find out  the meaning  in which  a word  is capable of  being used or understood in common parlance, the well-known cannon  of construction  should not  even  for  a minute be  overlooked that  the meaning  to  the  words  and expressions used  in a  statute ordinarily take their colour from the context in which they appear. [539F-G]      Deputy Chief  Controller of Imports & Exports New Delhi v. K.T. Kosalram Ors., [1971] 2 S.C.R. 507 at 517; and State Bank of  India v.  N. Sundara  Money, [1976]  3 S.C.R.  160, referred to.      Section 6  of the  Prevention of  Corruption Act,  1947 bars the  courts 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. Therefore,  when the  court is called upon to take cognizance of  such offences, it. must enquire whether there is a  valid sanction to prosecute the public servant for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 48  

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 ss. 161, 164, 165 I.P.C. and s. 5(2) of. the 1947  Act clearly  spell out  that the offences there in defined can  be committed  by  a  public  servant.  A  trial without a  valid sanction  where one is necessary under s. 6 would be  a trial  without jurisdiction  by the court. It is well settled  that the relevant date with reference to valid which a valid sanction is sine qua non for taking cognizance of an  offence committed  by a public servant as required by s. 6  is the  date when  the court  is called  upon to  take cognizance of  the offence  of  which  he  is  accused.  If, therefore,  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  cased to be a public servant,  s. 6  will not be attracted and no sanction would be  necessary for  taking cognizance  of  the  offence against him.  This approach  is in  accord with  the  policy underlying s.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 498 servant in  the meantime, this vital consideration ceases to exist. [512D; H; 513 A-E].      C.R. Bansi  v. State  of Maharashtra,  [1971] 3  S.C.R. 236; R.R.  Chari v. State of U.P., [1963] 1 S.C.R. 121; S.N. Bose v.  State of Bihar, [1968] 3 S.C.R. Venkataraman v. The State. [1958]  S.C.R.  1040  at  1052;  K.S.  Dharmaatan  v. Central Government & Ors., [1979] 3 S.C.R. 832, referred to.      In the  instant case, long before the date on which the cognizance was  taken by  the Special Judge, the accused had ceased to  hold the office of the Chief Minister and as such had ceased  to be  a public servant in his capacity as Chief Minister. A fortiori no sanction as contemplated by s. 6 was necessary before  cognizance of  the offence  could be taken against the  accused  for  offences  alleged  to  have  been committed in  his former capacity as public servant. [514 D- E]      The submission  that if the accused has held or holds a plurality of offices occupying each one of which makes him a public servant,  under s.  6 sanction  of each  one  of  the competent authorities  entitled to  remove him from each one of the offices held by him, would be necessary and if anyone of the  competent authorities  fails or  declines  to  grant sanction, the  court is  precluded or prohibited from taking cognizance of  the offence  with which the public servant is charged is  not acceptable.  Such an  interpretation of  s.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 there by defeat the process  of law.  Such an  interpretation is contrary to all cannons  of construction  and leads  to  an  absurd  end product which of necessity must be avoided. [520G; 518F-C]      The State  (S.P.E. Hyderabad)  v. Anr Commodore Kailash Chand, [1980] 2 S.C.R. 697, referred to and partly dissented from.      The expression  ’office’ in  the three sub-clauses of s 6(1) clearly  denotes that  office which  the public servant misused or  abused for corrupt motives for which he is to be prosecuted and  in respect  of which a sanction lo prosecute him is  necessary by  the competent  authority  entitled  to remove him  from  that  office  which  he  has  abused.  The sanction to  prosecute a  public servant  can be given by an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 48  

authority competent  to remove  him 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. The authority entitled  to grant sanction must apply its mind to the  facts   of  the  case,  evidence  collected  and  other incidental facts  before  according  sanction.  A  grant  of sanction  is   not  an  idle  formality  but  a  solemn  and sacrosanct act  which removes  the umbrella of protection of government servants  against frivolous  prosecutions and the aforesaid requirements  must therefore, be strictly complied with  before  any  prosecution  could  be  launched  against public servants.  Therefore, it  is  implicit  in  s.6  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. [516H; 517A-D]      Mohd. Iqbal  Ahmed v.  State of  A. P., [1979] 2 S.C.R. 1007, referred to. 499      The finding  of the  Special Judge  that the respondent being M.L.A. was a public servant within clauses (12)(a) (3) and (7)  of s.21  I.P.C. and  sanction  of  the  Legislative Assembly to  prosecute him  was necessary, is not correct. A person would  be a public servant under clause (12)(a) of s. 21 I.P.C.  if he  falls under  any of  the  following  three categories: (i)  if he  is in the service of the Government; or (ii)  if he  is hl the pay of the Government; or (iii) if he is  remunerated by fees or commission for the performance of any  public duty,  by the  Government. Looking  into  the history and  evolution of  s.21 I.P.C. as traced and adopted as an  external aid to construction, it is clear that M.L.A. was not  and is not a ’public servant’ within the meaning of expression in  any of  the clauses  of s. 21 I.P.C. Assuming that it  would not  be legally sound or correct according to well-accepted cannon of construction of a statue of construe s. 21(12)(a)  by mere  historical evolution  of the section, the constitutionally  valid approach would be to look at the language employed in the section to ascertain whether M.L.A. is a  public servant within the meaning of the expression in that section.  Depending upon  the context, ’or’. The use of the expression  ’or’ in  the context  in which it is used in cl.(12) (a)  does appear  to be  a  disjunctive.  Therefore, those would  be a  public servant.  The question  is whether M.L.A. falls  in under any of the above three categories? It was  concerned  that  M.L.A.  is  not  the  service  of  the Government but it was contended that M.L.A. is in the pay of the Government.  Undoubtedly, M.L.A.  receives a  salary and allowances  his   capacity  as  M.L.A.  under  the  relevant statute. But  does it  make him  a person ’in the pay of the Government’? The  word ’pay’  standing by  itself is open to various shades  of meaning  and when  the word  is used in a phrase in  the pay of’ it is more likely to have a different connotation than when standing by itself. The phrase "in the pay of’ would ordinarily import the element of employment or paid employment  or employed  and paid  by the employer. The phrase  does   not  import  of  necessity  a  master-servant relationship between  the person  receiving the  pay and the Government  as   payer.  Next   what  does   the  expression ’Government’ in  cl. (12)(a)  of  s.  21  I.P.C.  connote  ? Section  17  I.P.C.  provides  that  the  word  "Government’ denotes the Central Government or the Government of a State. Sec. 71  I.P.C. provides  that ’every  expression  which  is explained in  any part of the Code, is used in every part of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 48  

the Code  in conformity  with the  explanation’. Let  it  be noted that  unlike the  modern statute  s.7 does not provide unless  the  context  otherwise  indicate’,  a  phrase  that prefaces  the   dictionary  clauses  of  a  modern  statute. Therefore, the  expression "Government’ in s. 21(12)(a) must either mean  the Central  Government or  the Government of a State. The  Central Government  being out of considering the question is whether M.L.A. is the pay of the Government of a State or  is remunerated  by fees for the performance of any public duty by the Government of a State. Even though M.L.A. receives pay  and allowances,  he is  not in  the pay  of he state Government  because legislature  of a  State cannot be comprehended in  the  expression  ’State  Government’.  This conclusion would  govern also  the third  part of c. (12)(a) i.e. ’remunerated by fees for performance of any public duty by the Government. Therefore, if M.L.A. is not in the pay of the Government  in the  sense of  executive government or is not remunerated  by fees  for performance of any public duty by the exe- 500 cutive government,  certainly, he  would not be comprehended in the expression ’public servant’ within the meaning sf the expression in  cl. (12)(a).  He is thus not a public servant within the  meaning of  the expression  in cl. (12)(a). This conclusion rein  forces the earlier conclusion reached after examining the historical evolution of cl. (12)(a): [537 A B; 536G; E; H; 537 H;E; 539 E; 541 A; D-F; 543 E; 551 A-B]      Evolution of  Parliamentary Privileges  by S.  K. Nag ; Legislative Bodies  Corrupt Practices  Act, 1925; Prevention of Corruption  Act 1947  by Sethi  and Anand P.60; Santhanam Committee Report  dt. 31-3-1964;  Lok Sabha  Debates  (Third Series Vol.  35, Cls.  729 and 731; The Anti-Corruption Laws (Amendment) Bill,  1964 (enacted  as Act  40 of  1964); G.A. Monerop v.  The State of Ajmer, [1959] S.C.R. 682; The State of  Ajmer   v.  Shivji   Lal  [1959]  supp.  2  S.C.R.  739; Prabhashanker Dwivedi  and Anr. v. The State of Gujarat, AIR 1970 Gujart,  AIR  1970  Gujarat  97;  State  of  Gujart  v. Manshanker Prabhashanker Dwivedi, [1971] 1 S.C.R. 313; Green v. Premier  Glynrohonwy State Co. Ltd, [1928] 1 K.B. 8561 at 568; Babi  Manmohan Das  Shah & Ors. v. Bishnu Das, [1967] 1 S.C.R. 836  at 839;  Kamta Prasad  Aggarwal  etc.  Executive Engineer,  Ballabgarh  &  Anr.,  [1974]  2  S.C.R.  827;  M. Karunanidhi  v.   Union  of  India,  [1979]  3  S.C.R.  254; Costituent Assembly  debates, Vol.  VII p. 984; Rai Shib Ram jawaya Kapur  & Ors.  v. The State of Punjab [1975] 1 S.C.R. 225 at  p. 236;  Shamsher Singh  & Anr.  v. State of Punjab, [1975] 1  S.C.R. 841;  Sardari Lalv.  Union of  India & Ors. [1971] 3  S.C.R. 461; His Majesty the King v. Boston 7 Ors., [1923-24] 33  Commonwealth Law  Report 386.....82;  Earskine May Parhamentary Practice 20 edition, p. 149, referred to      The Submission  that the  accused  would  be  a  public servant within  the meaning  of the  expression  any  person empowered by law to discharge any adjudicatory functions, in cl. (3)  of s.21 I.P.C. must be rejected. Participation in a debate on  a motion  of breach  of privilege  or for  taking action for  contempt of  the House  and voting  thereon in a constitutional  function   discharged  by  the  members  and therefore,  it   cannot  be   said  that  such  adjudicatory functions if  it can  be so styled, constitutes adjudicatory function undertaken by M.L.A. as empowered by law. [554 E-F]      Special Ref.  No. 1  of 1966,  [1965] 1  S.C.R. 413  at pages 490,  491 and 472; I.C. Golaknath v. State of Punajab, [1967] 2 S.C.R. 672; Sripadangalavaru v. State of Kerala and Anr.; [1973] Supp. S.C.R 1 referred to.      The submission  that M.L.A.  would be  a public servant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 48  

within cl.  (7) of  s.21 I.P.C.  must be  rejected. cl.  (7) takes within its ambit ’every person who holds any office by virtue of  which he is empowered to place or keep any person in confinement.  Broadly stated  the expression  comprehends police and  prison authorities  or those under an obligation by law  or by virtue of office to take into custody and keep in confinement  any person.  To say that M.L.A. by virtue of his office  is  performing  ’policing  or  prison  officers’ duties would  be  apart  from  doing  violence  to  language lowering him  in status.  Additionally cl.(7) does not speak of any  adjudicatory  function.  lt  appears  to  comprehend situations where  as preliminary  to or an end product of an adjudicatory function  in a criminal case, which may lead to imposition of a prison sentence, and a Person in exercise of the duty  to be  discharged by  him by  virtue of his office places or keeps any person in confinement. [554G, 555 F-H]      In view  of the  finding that  M.L.A. is  not a  public servant under  clauses (12)(a),  (3) and  (7) of s.21 I.P.C. and no sanction under s.6 of the Prevention of Corruption 501      Act, 1947  is necessary  to prosecute  him. it  is  not necessary  to   ascertain  which   would  be  the  authority competent to sanction prosecution of M.L.A. [557 C]      In the  instant case,  the allegations in the complaint are all to the effect that the accused misused or abused his office as  Chief Minister  for corrupt  motives. By the time the Court  was called  upon  to  take  cognizance  of  those offences, the accused had ceased to hold the office of Chief Minister. The  sanction to  prosecute him was granted by the Governor of  Maharashtra but  this aspect  is irrelevant for concluding that  no sanction  was necessary to prosecute him under s.6  on the offences alleged to have been committed by the accused.  Assuming that as M.L.A. the accused would be a public servant  under s.21, in the absence of any allegation that he  misused or  abused his office as M.L.A. that aspect becomes immaterial.  Further s.6  postulates existence  of a valid sanction  for prosecution  of  a  public  servant  for offences punishable under s. 161, 164, 165 I.P.C. and s.5 of the 1947  Act, if they are alleged to have been committed by a public  servant. In view of the finding that M.L.A. is not a public  servant within  the meaning  of the  expression in s.21 I.P.C., no sanction under s.6 is necessary to prosecute him for  the offences alleged to have been committed by him. [556 G; 557 A-B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  no. 356 of 1983      From the  judgment  and  order  dated  25-7-83  of  the Special judge, Bombay in Special Case No. 24 of 1983.                             #AND      Transferred Case No. 348 of 1983                             AND      Transferred Case No 348 of 1983      Ram Jethmalani  P.R. Vakil, Ms. Rani Jethmalani, Mukesh Jethmalani, O.P.  Malviya, Shailendra  Bhardwaj  and  Harish Jagatlani for the appellant.      Dr. L.M.  Singhvi, Dalveer Bhandari, A.M. Singhvi, S.S. Parkar, H. Bhardwaj, U.N. Bhandari, H.M. Singh, Ranbir Singh and S.G. Hasnain for the respondent      Ashok Desai  and Mrs. J. Wad for the petitioner in T.C. No. 348 of 1983.      M.N. Shroff for State of Maharashtra

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 48  

    K. Parasaran,  Attorney  General,  Ms.  A.  Subhashini, Gopal Subramanian,  R.N. Poddar and C.V. Subba Rao for Union of India. 502 The Judgment of the Court was delivered      DESAI, J.  Respondent Abdul Rehman Antulay (hereinafter referred to  as the  accused) was  the Chief Minister of the State  of  Maharashtra  from  1980  till  he  submitted  his resignation on January 20, 1982, which became effective from January 20,  1982. He thus ceased. to hold the office of the Chief Minister  from January  20, 1982 but continues to be a sitting member  of the Maharashtra Legislative Assembly till today.      As the  contentions canvassed  before  this  Court  are mainly questions  of law,  facts  at  this  stage  having  a peripheral relevance  in the  course of  discussion,  it  is unnecessary to  set out the prosecution case as disclosed in the complaint  filed by  complainant Ramdas  Shrinivas Nayak (complainant for  short) in  detail save  and except  few  a pertinent and relevant allegations. In the process the brief history or the litigation may also be traced.      The complainant  moved the  Governor cf  Maharashtra by his application  dated September  1, 1981  requesting him to grant sanction  to prosecute the accused as required by Sec. 6 of  the Prevention of Corruption Act, 1947 (’1947 Act’ for short) for  various offences  alleged to have been committed by the  accused and  neatly  set  out  in  the  application. Complainant then  filed the  first complaint in the Court of Chief Metropolitan  Magistrate, 28th  Esplanade,  Bombay  on September 11,  1981 being Criminal Case No. 76 Misc. of 1981 against  the   accused  and   others   known   and   unknown collaborators alleging  that the  accused in his capacity as Chief Minister  and thereby  a  public  servant  within  the meaning of  Sec. 21  of the  Indian  Penal  Code  (IPC)  has committed offences  under Secs.  161, 165  IPC and Sec. 5 of the 1947  Act, Sec. 384 and Sec. 420 IPC read with Secs. 109 and 120-B  IPC. The  complaint runs  into 31  closely  typed pages and  carried the  list of  37 witnesses.  The  learned Metropolitan magistrate  invited the  complainant to satisfy him as  to how  the complaint  for offences under Secs. 161, 165 IPC and Sec. 5 of the 1947 Act is maintainable without a valid sanction  as contemplated  by Sec.  6 of  1971 Act and ultimately held that in the absence of a valid sanction from the Governor  of Maharashtra,  the complaint  filed  by  the complainant for  the aforementioned  three offences  was not maintainable.   The   learned   Metropolitan      Magistrate accordingly held as per order dated October 6, 1981 that the complaint was maintainable only for offences alleged to have been committed  by the accused under. Secs. 384 and 420 read with Secs.  109 and  120B of  the IPC  and directed that the case be fixed for 503 examining the complainant as required by Sec. 200 of the Cr. P.C. The  complainant questioned  the  correctness  of  this order in Special Criminal Application No. 1742 of 1981 filed in the High Court of Judicature at Bombay.      In the  meantime, another  development had  taken place which may  be briefly noticed. One Shri P.B. Samant, who has also filed  an identical complaint against the accused along with several  others filed  a Writ Petition No. 1165 of 1981 in the  High Court  of Judicature  at Bombay challenging the method of  distribution of ad hoc allotment of cement in the State of  Maharashtra as  being contrary  to the rule of law and probity  in public  life.  The  accused  as  the  second respondent in this petition, the first and third respondents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 48  

being  the   State  of   Maharashtra  and   Union  of  India respectively.  By   an  exhaustive   speaking  order   dated September 23, 1981, a learned Single Judge of the High Court granted rule  nisi and  made it  returnable on  November 23, 1981. The  writ petition  came up for hearing before another learned Single  Judge who  by his judgment dated January 12, 1982 made  the rule  absolute. Probably  as a sequel to this decision  of  the  High  Court,  the  accused  tendered  his resignation as  Chief Minister  on the same day and when the resignation was accepted he ceased to hold the office of the Chief Minister with effect from January 20, 1982.      Special Criminal Application’ No. 1942 of 1981 filed by the complainant  against the  order  of  the  learned  Chief Metropolitan Magistrate was dismissed by a Division Bench of the High  Court on  April 12,  1982. Not the accused but the State of  Maharashtra preferred  an appeal  by special leave under Art.  136 of  the Constitution against the decision of the Division  Bench of  the High Court rejecting the special criminal application;  This. Court  rejected the application for special  leave at  the threshold  on July 28, 1982. (See State of  Maharashtra v.  Ramdas Shrinivas Nayak and others) Promptly, on  the heels  of the  judgment of this Court, the Governor of Maharashtra on the same day granted the sanction under Sec.  6 of  the 1947  Act to  prosecute the accused in respect of  specific charges  set out in the order according sanction. Armed  with this sanction, the complainant filed a fresh complaint  in the  Court of  the Special Judge, Bombay registered as  Criminal Case  No. 24  of  1982  against  the accused as  Accused No.  1 and  others known and unknown. In this complaint  it is  broadly alleged  that the accused who was the Chief Minister of the State of Maha- 504 rashtra between  the period  August 1980  to September  1981 conceived scheme  of aggrandisement  involving obtaining  of funds from  the members  of  the  public  and  putting  them substantially under his own control for the disbursal of the funds so  obtained. The  complaint proceeded to refer to the setting up  of various  trusts and  alleged that the corner- stone of  the scheme  involved receipt  by  the  accused  of illegal gratification  other than  legal remuneration  as  a motive or  reward for doing or forbearing to do any official act, or for showing or forbearing to show in the exercise of his official  functions, favour  or disfavor  to persons, or for  rendering  or  attempting  to  render  any  service  or disservice  to   such  persons  who  dealt  with  the  State Government in  general and  with public  servants who formed part of the Government. It was specifically alleged that the scheme devised  by the  accused was  a flagrant abuse of his official position  as Chief  Minister for  obtaining control over funds which would be used for purposes conducive to the interest of  the accused  himself. The complainant proceeded to set  out the  abuse of  office of  Chief Minister  by the accused   citing   various   alleged   instances   such   as distribution of adhoc cement contrary to law and the binding circulars,  granting  liquor  Licences  as  and  by  way  of distribution of  Government largesse,  issuing no  objection certificates for  letting out  premises by obtaining a price for the same. The running thread through various allegations is that  the accused  by abusing  or misusing  his office of Chief Minister obtained or attempted to obtain gratification other than  legal remunerations a motive or reward for doing or forbearing  to do  any official  act as Chief Minister or for showing  or forbearing  to show  in the  exercise of his official functions,  favour or  disfavour to persons etc. To this complaint, the order granting sanction to prosecute the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 48  

accused made  by the Governor of Maharashtra was annexed and produced. After recording the verification of the complaint, the learned  Special Judge  took cognizance  of the offences and issued  process by  directing a  bailable warrant  to be issued in  the sum of Rs. 10,000 with one surety and made it returnable on September 3, 1983.      On the  process being  served the  accused appeared and sought exemption  from personal appearance which was granted for a day and the case was adjourned to October 18, 1982 for recording the  evidence of the complainant and his witnesses for the prosecution.      When the  case was  called out  on October  18, 1982 an application was  moved on  behalf of  the accused inter alia contending that  the Court  of the learned special Judge had no jurisdiction in view of the provision contained in Sec. 7 of the Criminal Law Amendment Act, 505      1952 (’1952  Act’ for short) and that no cognizance can be taken of offences punishable under Secs. 161, 165 IPC and Sec. 5  of the 1947 Act on a private complaint. The case was at that  time pending  in the  Court of  the  special  Judge presided over  by one  Shri P.S. Bhutta. The learned special Judge by  his order dated October 20, 1982 rejected both the contentions and  set down the case for November 29, 1982 for recording evidence  of the  prosecution. The learned special Judge made  it abundantly  clear that  under no circumstance the case  would be adjourned on the next occasion and if any revision or  appeal is  intended to  be  filed  against  the order, the  learned counsel  for  the  accused  should  give advance notice to the learned counsel for the complainant.      The accused filed Criminal Revision Application No. 510 of 1982 against the order of the learned special Judge dated October 20,  1982 rejecting  his application. On January 16, 1983, the Government of Maharashtra issued a notification in exercise of  the powers  conferred by sub-sec. (2) of Sec. 7 of 1952  Act and  in modification  of the earlier Government order dated April 12, 1982, directing that in Greater Bombay on and  after the  date of  the  notification  the  offences specified in  sub-sec. (1)  of sec.  6 of the 1947 Act which are investigated  by the Anti-Corruption Bureau of Police in Greater Bombay,  except special  cases No.  14, 15 and 16 of 1977 and  Special Case  No. 31  of 1979  to 37 of 1979 (both inclusive) shall continue to be tried by Shri R.B. Sule. The net outcome  of this  notification was that Special Case No. 24 of  1982 pending  in the Court of Special Judge Shri P.S. Bhutta would  stand transferred  to the  Court of  Shri R.B. Sule, Additional Special Judge for Greater Bombay.      On a  reference by the learned Single Judge, a Division Bench of  the Bombay  High Court heard and dismissed on arch 7, 1983  Criminal Revision Application No. 510 of 1982 filed by the  accused against  the order  of learned special Judge Shri P.S.  Bhutta dated October 20, 1982. The Division Bench in terms  held that  the private com plaint was maintainable and as  the required  notification has  already been issued, Shri R.B.  Sule will  have jurisdiction  to try Special Case No. 24  of 1982.  The learned  trial Judge  Shri R.B. Sue on receipt of  the record  of the case issued a notice on April 27, 1982  calling upon  all parties  to appear before him on April 21, 1983. lt appears on July 8, 1783, two applications were moved on behalf of the accused urging the learned trial Judge; (i) to discharge the accused inter alia on the ground that the  charge was  groundless and  that even  though  the accused 506 had ceased  to be  the Chief Minister, on the date of taking

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 48  

cognizance of  the offences,  he was a sitting member of the Maharashtra  Legislative  Assembly  and  as  such  a  public servant and  in that  capacity a  sanction to  prosecute him would have  to  be  given  by  the  Maharashtra  Legislative Assembly and  the sanction granted by the Governor would not be valid  in this  behalf. The second petition requested the learned Judge  to postponed  the case  till the petition for special, leave  field by the accused against the decision of the Division  Bench cf  the  High  Court  holding  that  the private complaint was maintainable is disposed of Both these applications came  up for hearing before Shri R.B. Sule, who by his  order dated  July 25,  1783 upheld the contention of the accused  that M.L.A  was a  public  servant  within  the meaning of  the expression  in Sec. 21 (12) (a) IPC and that unless  a   sanction  to  prosecute  him  by  the  authority competent to  remove him  from  his  office  as  M.L.A.  was obtained which  in the opinion of the learned Special Judge. was Maharashtra Legislative Assembly the accused is entitled to be  discharged. So  saying, the  learned Judge discharged the accused.  The complainant  filed a  petition for special leave to  appeal No. 1850 of 1983 and a Writ Petition (Crl.) No. 145 of 3983 against the decision. Of the learned special Judge. Both  these matters  came up  before  this  Court  on August 3, 1983 when the matters were adjourned to August 10, 1983 to  enable the petitioner, original complainant to file a criminal  revision application  against the  order of  the learned special  Judge in  the High  Court. Accordingly, the complainant filed  Criminal Revision  Application No. 354 of 1983 in  the High Court against the order of learned special Judge Shri  R.B. Sule. This Court ultimately granted special leave to  appeal as  also rule nisi in the writ petition. By an  order   made  by   this  Court,  the  criminal  revision application filed  by the  petitioner stands  transferred to this Court.      It may be mentioned that this Court has granted special leave to  the accused  against the  decision of the Division Bench of  the Bombay  High  Court  holding  that  a  private complaint is  maintainable etc.  Criminal Appeal  No. 247 of 1983 arising out of the said special leave petition is being heard along  with this  matter but  that will  be dealt with separately.      While discharging  the  accused,  the  learned  special Judge  held   that  the   material  date  for  deciding  the applicability of Sec. 6 of the 1947 Act is the date on which the court  is asked  to  take  cognizance  of  the  offence. Proceeding further  it was held that even though the accused had ceased  to hold  the office of the Chief Minister on the date 507 on which  cognizance was taken by the learned special Judge, Shri Bhutta,  yet on  that date  he was a sitting M.L.A. and was therefore  a public  servant within  the meaning  of the expression in  Sec. 21 (12)(a) in as much as the M.L.A. is a person in  the pay  of the  Government or  at any rate he is remunerated by  fees for  performance of  public duty by the Government and  therefore, he  is a  public  servant.  As  a corollary, the  learned Judge  held that  as on  the date of taking cognizance  of the  offence the  accused was a public servant, he could not be prosecuted without a valid sanction as contemplated by Sec. 6 of the 1947 Act. The learned Judge further held  that the  M.L.A. holds an office and he can be removed from that office by the Legislative Assembly because the latter  has the  power to  expel a  member  which  would amount to  removal from  office. The  learned Judge  further held that  as there  was  no  sanction  by  the  Maharashtra

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 48  

Legislative Assembly  to prosecute  the accused  and as  the Governor had no power to sanction prosecution of the accused in his  capacity as  M.L.A. the  accused is  entitled to  be discharged for  the of offences under Secs. 161, 165, 120-B, 109 IPC  and Sec.  5 of  the 1947  Act for  want of  a valid sanction for  prosecution,  and  in  respect  of  the  other offences, the  accused is  entitled to  be discharged on the ground  that   the  court   of  the  special  Judge  had  no jurisdiction to  try the  accused  for  those  offences.  In respect of  those other offences, the learned Judge directed the  complaint  to  be  returned  to  the,  complainant  for presenting it  to the proper court. It may be mentioned that by a  common order  in Special Case No. 3 of 1983 instituted upon the  complaint of  Mr. P.B.  Samant,  the  accused  was discharged.      Sec. 21  IPC defines  a ’Public  Servant’. The relevant clauses may be extracted as under:      "21. The words ’public servant’ denote a person falling      under any  of the  descriptions hereinafter  following,      namely:-      Third-Every Judge including any person empowered by law      to discharge,  whether by himself or as a member of any      body of persons, any adjudicatory functions.      Seventh: Every person who holds any office by virtue of      which he  is empowered  to place  or keep any person in      confinement      Twelfth-Every person-           (a)  in the  service or  pay of  the Government or                remunerated 508                by fees  or commission for the performance of                any public duty by the Government;           (b)  in the service or Pay of a local authority, a                corporation  establishes   by  or   under   a                Central,  Provincial   or  State   Act  or  a                Government Company  as defined in Section 617                of the Companies Act, 1956.           Explanation 1:  Persons falling  under any  of the      above  descriptions   are  public   servants,   whether      appointed by the Government or not"      Sec. 17  defines the  expression ’Government  to denote the Central  Government or the Government of a State. Sec 14 defines the  expression ’servant of Government to denote any officer or servant continued, appointed or employed in India by or under the authority of Government.      Sec. 19 defines the word ’Judge’ as under:           "The word  "Judge" denotes  not only  every person      who is officially designated as a Judge, but also every      person                Who is empowered by law to give, in any legal           proceeding,  civil,   or  criminal,  a  definitive           judgment, or  a judgment  which  if  not  appealed           against, would be definitive, or a judgment which,           if confirmed  by some  other authority,  would  be           definitive, or  who is  one of  a body  of person,           which body  of persons is empowered by law to give           such a judgment."..      Sec.  7   provides  that  ’every  expression  which  is explained in  any part  of the  Code (IPC), is used in every part of this Code in conformity with the explanation.’      Sec. 5  of the 1947 Act defines the offence of criminal misconduct and  a public  servant who  commits an offence of criminal  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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 48  

liable to fine.      Sec. 6 provides for a sanction as a pre-condition for a valid prose- 509 cution for  offences punishable under Sec. 161, 164, 165 IPC and Sec. 5 of the 1947 Act. It reads as under:           "6(1) No court shall take cognizance of an offence      punishable under  Section 161  or Section  165  of  the      Indian Penal  Code, or under sub-section (2) of Section      S of  this Act,  alleged to  have been  committee by  a      public servant, except with the previous sanction,           (a)  in the  case of  a person  who is employed in                connection with  affairs of  the 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 of a State and is                not removable from his office save by or with                the sanction of the State Government,           (c)  in the  case of  ally 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  (1)  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".      With a  view to  eradicating the  evil of  bribery  and corruption, the  Government of  India set  up a Committee to make  recommendations   for  the  improvement  of  the  laws relating to bribery and corruption under the Chairmanship of Dr. Bakshi  Tek Chand.  The recommendations of the Committee led to the enactment of the Criminal Law Amendment Act, 1952 By the 1952 Act, power was conferred on the State Government to appoint  special offences  as may  be necessary  for such area or areas as may be specified in the notification to try the following  offences namely;  offences  punishable  under Sections 161,  162, 163, 164, 165 and 165A IPC and Sec. 5 of the 1947  Act and any conspiracy to commit or any attempt to commit or any abetment of 510 any of  the offences hereinabove mentioned; See. 7 conferred exclusive jurisdiction on the special Judges appointed under See. 6.  Sub-sec.  (2)  of  Sec.  7  provides  for  specific territorial jurisdiction  of a  special Judge.  Sub-sec. (3) conferred power on the special Judge also to try any offence other than  an offence  specified in.  Sec. 6 with which the accused may,  under the Code of Criminal Procedure, 1898, be charged at  the same  trial. Sec. 8 prescribed the procedure to be  followed by  the special  Judge in  the trial  of the offences. The  Court of  special Judge  was deemed  to be  a Court of  Sessions trying  cases without  a jury  within the local limits  of the  jurisdiction of the High Court for the purposes of  Chapter XXXI  and XXXII of the Code of Criminal Procedure as provided by Sec. 9.      The appellant,  the original complainant, contends that the learned  special Judge  was in  error  in  holding  that M.L.A. is  a  public  servant  within  the  meaning  of  the expression under  Sec. 21(12)(a).  The second submission was that if  the first  question is answered in the affirmative, it would  be necessary  to examine  whether  a  sanction  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 48  

contemplated by  Sec. 6  is necessary.  If the answer to the second question  is in the affirmative it would be necessary to identify  the sanctioning  authority. The  broad sweep of the argument  was that  the complainant in his complaint has alleged that the accused abused his office of Chief Minister and not his office, if any, as M.L.A. and therefore, even if on the  date of taking cognizance of the offence the accused was M.L.A.,  nonetheless no  sanction to  prosecute  him  is necessary as  envisaged by  Sec. 6  of the  1947 Act. lt was urged that  as the  allegation against  the accused  in  the complaint is  that he  abused or misused his office as Chief Minister and  as by  the time  the complaint  was filed  and cognizance was  taken, he  had ceased  to hold the office of the Chief Minister no sanction under Sec. 6 was necessary to prosecute  him   for  the  offences  alleged  to  have  been committed by  him when  the accused  was admittedly a public servant in his capacity as Chief Minister.      On behalf  of the  accused, it  was contended  that not only the accused would be a public servant as falling within the meaning  of tile  expression in  Sec. 21(12)(a)  but  he would also  be a  public servant within the contemplation of clauses (3)  and (7)  of Sec.  21.  The  next  limb  of  the argument was  that if  an accused hold plurality of Offices, each of  which confers on him the status of a public servant and even  if it is alleged that he has abused or misused one office as  a public  servant notwithstanding,  the fact that there no  allegation of abuse or misuse of other office held as public servant, sanction of each authority com- 511 petent to  remove him  from each  of the  offices would be a sine qua  non under Sec. 6 before a valid prosecution can be launched against the accused.      On these  rival contentions  some vitat and some not so vital points  arise for  consideration, some  easy of answer and some  none-tooeasy. For  their  scientific  and  logical treatment they may be formulated.      (a)   What is the relevant date with reference to which           a  valid  sanction  is  a  pre-requisite  for  the           prosecution  of  a  public  servant  for  offences           enumerated in Sec. 6 of the 1947 Act?      (b)  If the accused holds plurally of offices occupying           each of  which makes  him  a  public  servant,  is           sanction of  each one of the competent authorities           entitled to  remove  him  from  each  one  of  the           offices held by him necessary and if anyone of the           competent authorities  fails or  declines to grant           sanction, is  the Court  precluded  or  prohibited           from taking  cognizance of  the offence with which           the public servant is charged ?      (c)  Is it  implicit in  Sec. 6  of the  1947 Act  that           sanction of  that  competent  authority  alone  is           necessary, which  is entitled to remove the public           servant from  the office  which is alleged to have           been abused for misused for corrupt motives ?      (d)  Is M.L.A.  a public  servant within the meaning of           the expression in Sec. 21(12)(a) IPC ?      (e)  Is M.L.A.  a public  servant within the meaning of           the expression in Sec.21(3) and Sec. 21(7) ICP ?      (f)  Is sanction  as contemplated by Sec. 6 of the 1947           Act necessary for prosecution of M.L.A. ?      (g)  If the  answer to (f) is in the affirmative, which           is the  Sanctioning Authority  competent to remove           M.L.A.  from   the  office   of  Member   of   the           Legislative Assembly?      Re. (a):  The 1947  Act was  enacted, as its long title

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 48  

shows, to  make more  effective provision for the prevention of bribery  and  corruption.  Indisputably,  therefore,  the provisions of the Act must receive 512 such construction  at  the  hands  of  the  court  as  would advancehte 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 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.      Section 6  bars the court from taking cognizance of the offences therein  enumerated allegel  to have been committed by a public servant except with the previous sanction of the competent  authority   empowered  to   grant  the  requisite sanction. Sec. 8 of 1952 Act prescribes procedure and powers of special Judge empowered to try offences set out in Sec. 6 of 1947  Act. Construction  of Sec.  8 has been a subject of 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. Sec.  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 clause (a), (b) &  (c) of  sub-Sec.  (1).  The  object  underlying  such provision was to save the public servant from the harassment of frivolous  or  unsubstantiated  allegations.  The  policy underlying Sec. 6 and similar sections, is that there should not be  unnecessary harassment  of public servant. (Sec C.R. Bansi v. State of Maharashtra(1)). Existence thus of a valid sanction is  a pre-requisite  to the taking of cognizance of the 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 cognizances  of such offences, it must enquire whether there  is a  valid sanction  to prosecute the public servant for the offence alleged to have been committed by 513 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 Sec. 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 have no jurisdiction to take  cognizance of  the offence. A trial without a valid

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 48  

sanction where  one is  necessary under Sec. 6 has been held to be  a trial  without jurisdiction by the court. (See R.R. Chari v. State of U.P.(1) and S.N. Bose v. State of Bihar(2) In Mohd. Iqbal Ahmed v: State of A.P.(3), 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 the cognizance of the offence. If  therefore, 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 public servant, no sanction would be necessary for taking cognizance of  the offence  against him. This approach is in accord with  the policy  underlying Sec.  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, Sec. 6 is not attracted. This aspect is not more res integra. In S.A. Venkataraman v. The State(4) this Court held as under:           "In or  opinion, in  giving effect to the ordinary      meaning of  the words  used in  s. 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 s.  6 can apply. In the present appeals, admittedly,      the appellants  had cease to be public servants alleged      to have  been committed  by them  as  public  servants.      Accordingly, the provisions of s.6 of the Act 514      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 C.R. Bansi’s case  and K.S.  Dharmadatan v.  Central Government & Ors.(1) 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  required by  Sec. 6 is the date on which the court is  called upon  to take  cognizance of the offence of which he is accused.      The accused tendered resignation of his office as Chief Minister and  ceased to  hold the  office of  Chief Minister with effect  from January 20, 1982. The complaint from which the present  appeal  arises  and  which  was  registered  as Criminal Case No. 24/82 appears to have been filed on August 9,  1982  and  the  cognizance  was  taken  by  the  learned Magistrate on  the same  day. It  unquestionably  transpires that long  before the date on which the cognizance was taken by the learned special Judge, the accused had ceased to hold the office  of the  Chief Minister and as such had ceased to be a  public servant.  In other  words, he  was  not  public servant in  his capacity as Chief Minister on August 9, 1982 when the court took cognizance of the offence against him. A fortiori no sanction as contemplated by Sec. 6 was necessary before cognizance  of the offence could be taken against the accused for  offences alleged  to have been committed in his former capacity  as public  servant. Re: (b) and (c): It was strenuously contended  that if the accused has held or holds a plurality of offices occupying each one of which makes him

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 48  

a public  servant, sanction  of each  one of  the  competent authorities entitled  to remove  him from  each one  of  the offices held by him, would be necessary and if anyone of the competent authorities  fails or  declines to grant sanction, the court  is precluded or prohibited fome taking cognizance of the  offence with  the public  servant is  charged.  This submission was  sought to  be repelled  urging  that  it  is implicit in  Sec. 6 that sanction of that authority alone is necessary which  is competent  to remove  the public servant from the  office which  he is  alleged to  have  misused  or abused  for  corrupt  motives.  Sec.  6(1)(c)  is  the  only provision relied  upon on  behalf of  the accused to contend that as M.L.A. he was a public servant on the date of taking cognizance of  the offences, and therefore, sanction of that authority comepetent  to remove  him from  that office  is a since qua  non for  taking cognizance  of offences.  Sec.  6 (1)(c) bars taking cognizance of an 515 offence alleged  to have  been committed  by public  servant except with the previous snaction of the authority competent to remove him from his office.      In order  to appreciate  the rival contentions the fact situation relevant  to the  topic under  discussion  may  be noticed. At  a general  election held  in 1980,  accused was elected as Member of the Legislative Assembly of Maharashtra State  fom   Shrivardhan  Assembly   Constituency.  He   was appointed as Chief Minister of Maharashtra State, and he was holding that  office at  the time  he  is  alleged  to  have committed the  offences  set  out  in  the  complaint  filed against him.  He tendered  his resignation  of the office of the Chief  Minister and  ceased to  hold  that  office  with effect from  January 20,  1982.  However,  he  continued  to retain his  seat as M.L.A. The contention is that as M.L.A., he  was   a   public   servant,   a   submission   seriously controverted, which  we would  presently examine and that he was such  public servant even on the date on which the court took cognizance  of the  offences set  out in  the complaint without a  valid sanction  and therefore  the court  had  no jurisdiction to  take cognizance of the offences. In support of the submission it was urged that if the policy underlying Sec. 6  and similar provisions like Sec. 197 Cr. P.C. was to spare the  harassment to  the public servant consequent upon launching of frivolous or speculative prosecutions, the same would be  defeated if  it  is  held  that  the  sanction  to prosecute is necessary from an authority competent to remove the public  servant from  the office  which he is alleged to have misused  or abused.  Proceeding along  this line it was urged that  even if  the accused  has ceased  to be a public servant in  one capacity by ceasing to hold the office which he is  alleged to have misused or abused yet if he continued to be  a public  servant in  another capacity, the authority competent to remove him from the latter office would have to decide whether  the prosecution  is frivolous or speculative and in  larger public  interest to thwart it by declining to grant the  sanction. It  was also  urged that  if  a  public servant has  to discharge  some public duty and perform some public functions  and he  is made  to cool  his heels in law courts, public  interest would  suffer by  keeping him  away from his  public duty  and therefore,  to advance the object underlying Sec.  6, the  court must  hold that if the public servant who  is being  prosecuted holds more than one public office  occupying   each  one  of  which  makes  him  public servants,  a   sanction  to   prosecute  of  each  competent authority  entitled  to  remove  him  from  each  office  is necessitous before  taking cognizance  of  offences  against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 48  

him. It was urged that this approach would advance and 516 buttress the  policy underlying Sec. 6 and the contrary view would defeat the same.      Offences prescribed  in Sec.  161, 164  and 165 IPC and Sec. 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 serverable. Each of the three clauses of sub-s. (1) of Sec. 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 Sec. 6  requires a  sanction  before  taking  cognizance  of offences committed  by public  servant. The offence could be committed by  the public  servant by misusing or abusing the power of  office and  it is  from that office, the authority 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   local remuneration for  doing or  forbearing to do an official act (Sec. 161  IPC)  or  as  a  public  servant  abets  offences punishable under  Secs. 161  and 163  (Sec. 164  IPC) or  as public   servant    obtains   a   valuable   thing   without consideration from  person concerned  in any  proceeding  or business transacted by such public servant (Sec. 165 IPC) or commits criminal misconduct as defined in Sec. 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 public  servant. The  expression ‘offices’  in the three sub-clauses of  Sec. 6(1)  would clearly  denote that office which the  public servant  misused  or  abused  for  corrupt motives for  which he  is to be prosecuted and in respect of which a  sanction to  prosecute  him  is  necessary  by  the competent authority  entitled to remove him from that office which he has abused. 517 This interrelation  between  to  office  and  its  abuse  if serered would  render Sec.  6 devoid of any meaning. An this interrelation clearly  provides a  clue to the understanding of the  provision in  Sec. 6  providing for  sanction  by  a competent authority who would be able to judge the action of the public  servant before  removing the  bar,  by  granting sanction, to the taking of the cognizance of offences by the court   against    the   public   servant.   Therefore,   it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the  office which he has misused or abused because that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 48  

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 a  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  incidental facts  before  according  sanction.  A grant of  sanction is not an idle formality but a solemn and sacrosanct act  which removes  the umbrella of protection of government 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  of  Andhra Pradesh). 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  judge whether  a serious  offence is committed  or   the  prosecution   is  either  frivolous  or speculative. 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  be in a position to know what was the power conferred on  the office  which the public servant hold, how that power  could be  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  competent to  remove the  public servant from that office  and the nature of the office hold by the public servant against whom sanction is sought which would indicate a hierarchy  and which  would therefore, permit inference of 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. 518      Now if  the 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 of his time in  law courts keeping him away from discharging public duty, are  the objects  underlying Sec. 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  Sec. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 48  

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 was  in  affirmative.  But  the  very illustration would show that such cannot be the law. Such an interpretation of  Sec. 6  would render it as a shield to an unscrupulous public  servant. Someone  interested protecting may shift  him from  one office of public servant to another and thereby  defeat the process of law. One 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 Sec. 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  entitled to remove him from 11 different public offices  would be necessary before the court can take cognizance of  the offence committed by such 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 519 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)      Support was  sought to be drawn for the submission from the decision  of  the  Andhra  Pradesh  High  Court  in  Air Commodore Kailash  Chand v.  The State (S.P.E. Hyderabad)(2) and the  affirmance of  that decision  by this  Court in The State (S.P.E.  Hyderabad) v. Air Commodore Kailash Chand.(3) In that  case accused  Kailash Chand  was a  member  of  the Indian Air Force having entered the service on 17th November 1941. He  retired from  the service  on 15th June, 1965, but was re-employed  for a  period of  2 years  with effect from 16th June,  1965. On 7th September, 1966, the respondent was transferred to  the Regular  Air Force  Reserve with  effect from June  16, 1965  to June 15, 1970 i.e. for a period of 5 years. On  13th March,  1968, the re-employment given to the respondent ceased and his service was terminated with effect from April 1, 1968. A charge-sheet was submitted against him for having  committed an  offence under  Sec.  5(2)  of  the Prevention of  Corruption Act,  1947 during the period March 29, 1965  to March  16, 1967.  A contention  was  raised  on behalf  of  the  accused  that  the  court  could  not  take cognizance of the offence in the absence of a valid sanction of the  authority competent  to remove  him from  the office held by  him as  a public servant. The learned special Judge negatived the  contention. In the revision petition filed by the accused in the High Court, the learned Single Judge held that on  the date  of taking  cognizance of the offence, the accused was a member of the Regular Air Force Reserve set up under the  Reserve and  Auxiliary Air  Force, 1952  and  the rules made  there under.  Accordingly, it  was held  that  a sanction to  prosecute him  was necessary and in the absence of which the court could not that cognizance of the offences and  the   prosecution  was   quashed.  In   the  appeal  by certificate, this  Court upheld  the decision  of  the  High Court. This  Court  held  following  the  decision  in  S.A. Venkataraman’s case that if the public servant had ceased to be a  public servant at the time of taking cognizance of the offence, Sec.  6 is  not  attracted.  Thereafter  the  court proceeded to  examine  whether  the  accused  was  a  public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 48  

servant on  the date  when the  court took cognizance of the offence and  concluded that once the accused was transferred to the  Auxiliary Air  Force, he retained his character as a public servant  because he  was required to undergo training and 520 to be  called up for service as and when required. The court further held  that as  such the accused was a public servant as an  active member  of the Indian Air Force and a sanction to prosecute  him under  Sec. 6 was necessary. This decision is of  no assistance  for the obvious reason that nowhere it was contended  before the court, which office was alleged to have been  abused by the accused and whether the two offices were separate and distinct. It is not made clear whether the accused continued  to hold  the office  which was alleged to have been  abused or  misused even  at the  time  of  taking cognizance of  the offence. But that could not be so because the service  of the  accused was terminated on April 1, 1968 while the  cognizance was  sought to be taken in June, 1969. Indisputably, the  accused had ceased to hold that office as public servant  which he  was alleged  to  have  misused  or abused. The  court was  however, not invited to consider the contention canvassed  before us.  Nor was the court informed specifically whether  the  subsequent  office  held  by  the accused in that case was the same from which his service was terminated meaning  thereby he  was re-employed  to the same office. The  decision appears to proceed on the facts of the case. 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 Sec. 6.      Therefore, upon  a true  construction of  Sec. 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.      In the  complaint filed against the accused it has been repeatedly alleged  that the  accused as  Chief Minister  of Maharashtra State  accepted gratification  other than  legal remuneration from various sources 521 and  thus   committed  various   offences  set  out  in  the complaint. No-where,  not even  by a  whisper, it is alleged that the  accused has  misused or abused for corrupt motives his office as M.L.A. Therefore, it is crystal clear that the complaint  filed   against  the  accused  charged  him  with criminal abuse  or  misuse  of  only  his  office  as  Chief Minister. By  the time,  the court  was called  upon to take cognizance of the offences, so alleged in the complaint, the accused had ceased to hold the office of the Chief Minister. On this  short ground,  it can  be held  that no sanction to prosecute him  was necessary  as former  Chief  Minister  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 48  

Maharashtra State.  The appeal  can succeed  on  this  short ground. However,  as the real bone of contention between the parties was  whether as  M.L.A. the  accused  was  a  public servant and  the contention was canvassed at some length, we propose to deal with the same.      The learned  special Judge  held that  the  accused  as M.L.A. is  a public  servant because he is in the pay of the Government or he is remunerated by feces for the performance of public  duty by the Government. The learned special Judge simultaneously rejected  the contention  canvassed on behalf of the  accused that the accused is a public servant because he is  a person empowered by law to discharge as a member of a body  of persons adjudicatory functions as contemplated by the Third clause of Sec. 21.      Re: (d):  We would  first examine  the  correctness  or otherwise of  the finding  of the    learned  special  Judge whether the  accused  as  M.L.A.  was  in  the  pay  of  the Government or was remunerated by fees for the performance of any public  duty by  the Government so as to be clothed with the status  of a  public servant  within the  meaning of cl. (12)(a) of  Sec. 21  IPC. C1.  (12)(a) provides  that  every person  in   the  service   or  pay  of  the  Government  or remunerated by fees or commission for the performance of any public duty by the Government would be a public servant. The three limbs  of cl. (12)(a) according to the learned special Judge are:       (i) Every person in the service of the Government; or      (ii) Every person in the pay of the Government; or     (iii) Every person remunerated by fees or commission for           the  performance   of  any   public  duty  by  the           Government.      If any person falls in any of the three limbs according to the 522 learned special  Judge, he  would be a public servant within the meaning of the expression in Sec. 21. IPC.      It was  conceded before  the learned  special Judge and not retracted  before us  that the  case of the accused does not fall  in the first limb i.e. the accused as M.L.A. could not be  said to  be in  the service  of the  Government. The contention is that the accused while receiving his salary as M.L.A. under  the Maharashtra  Legislature Members’ Salaries and Allowances  Act, 1956  was and  is in  the  pay  of  the Government. The  second limb of the submission was that even if the  pay which  the accused  received as M.L.A. under the relevant Act  would not make the accused a person in the pay of the  Government, nevertheless  the pay  received  by  him would be  the remuneration  which the  accused would receive for performance  of public  duty from the Government. It was contended on  behalf of  the complainant that the expression ‘in the  pay of  the Government’  would, in  the context  in which the  expression is  used in  Sec. 21(12)(a), mean only one thing  that the payment must be by a master to a servant and unless  there is  relationship of  master and servant or relationship of  command and obedience between the payer and the payee, mere payment even if styled as pay would not mean that the  payee is in the pay of the payer. Proceeding along it was submitted that M.L.A. could not be said to be subject to obedience of any command by the Government, and therefore the accused as M.L.A. could not be said to be ‘in the pay of the Government’. And as regards the third limb, it was urged that the  accused as  M.L.A. was  not performing  any public duty for  the performance of which he was remunerated by the Government. Additionally,  it was  urged that the expression ‘Government’ in  cl. (12)  (a) must receive the same meaning

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 48  

assigned to  it in  Sec. 17  IPC  meaning  thereby  that  it denotes the  Central Government or the Government of a State as the context requires. It was urged that in that sense the expression  ‘Government’   in  cl.   (12)  (a)   would  mean ‘Executive Government’  and it  would be  adding  insult  to injury if  it can  ever be said that M.L.A. is in the pay of the Executive  Government or  State Government. On behalf of the accused  these submissions  were repelled by urging that the use  of  word  ‘or’  signifies  a  disjunctive  and  not conjuctive and that viewed from this angle the first part of cl. (12) (a) ‘in the service of the Government’ would import the  notion   of  master   servant  or   command   obedience relationship,  but   the  expression  ‘in  the  pay  of  the Government’ would  signify someone  other than that included in the  first limb  and as  the  legislature  could  not  be accused of  tautology or  redundancy the  expression ‘in the pay of  the Government’  would exclude  any notion of master servant or command obedience relationship. It was submit- 523 ted that conceivably there can be a person in the service of the  Government  though  not  paid  by  the  Government  and conversely there  can  be  a  person  ‘in  the  pay  of  the Government’ without  being in the service of the Government. It was also submitted on behalf of the accused that it would be constitutional  impertinence to  say that M.L.A. does not perform any  public duty. His duty may be political or moral as urged  on behalf of the complainant but it is nonetheless a constitutional  duty which  he is performing and that duty would be comprehended in the expression ‘public duty’ in cl. (12)  (a).   As  a  corollary  it  was  submitted  that  the remuneration in  the form  of pay which the accused receives and has  been receiving  since he  ceased to  be  the  Chief Minister under  the relevant  Act is  remuneration  for  the performance of  the public  duty by the Government. The neat question that  emerges on  the rival  contentions is  one of construction of  the expression  ‘in the  pay  of’  and  the expression ‘Government’ in cl. (12) (a).      At  the  threshold  learned  counsel  for  the  accused sounded a  note of caution that the Court should steer clear of the impermissible attempt of the appellant to arrive at a true meaning  of legislative  provision by delving deep into the hoary  past and  tracing the historical evolution of the provision  awaiting  construction.  It  was  submitted  with emphasis that  this suggested  external aid  to construction falls in  the exclusionary  rule and  cannot be  availed of. Therefore,  it   has  become   necessary  to   examine  this preliminary  objection   to  the  court  resorting  to  this external aid  to construction. Sec. 21 (12) (a) acquired its present form in 1964.      Mr. Singhvi  contended that  even where  the words in a statute are  ambiguous and  may be  open to  more  than  one meaning or  sense, a  reference to the debates in Parliament or the  report of a Commission or a Committee which preceded the enactment  of the  statute under  consideration is not a permissible aid  to construction. This is what is called the exclusionary rule.  In support  of the  submission, reliance was placed  upon Assam  Railways and  Trading  Co.  Ltd.  v. Inland Revenue  Commissioners(1) in which the House of Lords declined to  look into the Report of the Royal Commission on Income tax  in order  to ascertain  the meaning  of  certain words in the Income Tax Act, 1920 on the ground that no such evidence for  the purpose  of showing the intention, that is the  purpose  or  object,  of  an  Act  is  admissible.  The intention of  the legislature  must be  ascertained from the words of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 48  

524 statute which  such extraneous  assistance as is legitimate. This view  appears to  have been  consistently  followed  in United Kingdom  because in  Katikiro of  Buganda v. Attorney General(1), the  Privy Council  held in  agreement with  the Court of  Appeal of  Eastern Africa that the contents of the White Paper  were not admissible in evidence for the purpose of construing  the schedule.  Similarly in  Central Asbestos Co. Ltd.  v. Dodd the House of Lords declined to look at the Committee Report  which preceded the drafting of the Act. In the Administrator  General of  Bengal v.  Premlal Mullick  & Ors(3), the  Privy Council  disapproved the reference to the proceeding of  the Legislature which resulted in the passing of the Act II of 1874 as legitimate aids to the construction of Sec.  31 by  the Appeal  Bench of  Calcutta  High  Court. Relying on  these decisions,  a valiant  plea  was  made  to persuade  us   not  to   depart  from   this  well  accepted proposition of  law in  England. The trend of law manifested by these decisions broadly indicate that in the days gone by the courts in England were of the view that reference to the recommendations of  a Commission  or Committee  appointed by the Government  or statements  in White  Paper which shortly preceded the statute under consideration were not legitimate aids to construction of the statute even if the words in the statute were ambiguous.      The trend  certainly seems to be in the reverse gear in that in  order to  ascertain the  true meaning  of ambiguous words  in   a  statute,   reference  to   the  reports   and recommendations  of   the  Commission   or  Committee  which preceded the  enactment of  the statute  are held legitimate external aids  to construction.  The modern  approach has to considerable extent  roded the  exclusionary  rule  even  in England. Constitution Bench of this Court after specifically referring to  Assam Railways  and Trading Co. Ltd. v. I.R.C. in State of Mysore v. R.V. Bidap(4) observed as under:           "The trend of academic opinion and the practice in      the European  system suggest  that interpretation  of a      statute being exercise in the ascertainment of meaning,      every thing  which  is  logically  relevant  should  be      admissible..... .........There  is a  strong  case  for      whittling. down  the Rule  of Exclusion followed in the      British courts  and for  less apologetic  reference  to      legislative proceedings  and like materials to read the      meaning 525      of the  words of  a statute.  Where it  is  plain,  the      language prevails, but where there is obscurity or lack      of harmony  with other  provisions and in other special      circumstances, it  may be  legitimate to  take external      assistance such  as the  object of  the provisions, the      mischief sought  to be  remedied., the  social context,      the words of the authors and other allied matters."      Approaching   the   matter   from   this   angle,   the Constitution  Bench  looked  into  the  proceedings  of  the Constituent   Assembly   and   "The   Framing   of   India’s Constitution; A Study’ by B. Shiva Rao. It was however urged that before  affirmatively saying  that in Bidap’s case this Court has  finally laid  to rest this controversy, the court may refer  to Commissioner  of Income  Tax, Andhra  Pradesh, Hyderabad v.  Jaya lakshmi  Rice and  oil  Mills  Contractor Co.(1) At  page 368  a bench  of three  Judges of this Court without so  much as  examining the  principle underlying the exclusionary rule  dissented from the view of the High Court that the  report of  the Special  Committee appointed by the Government of India to examine the provisions of the Bill by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 48  

which Sec.  26A was added to the Income-tax Act, 1922 can be taken into  consideration for  the purpose  of  interpreting relevant provisions  of the  Partnership Act. However it may be stated that the Court did not refer to exclusionary rule. It dissented  from the  view of the High Court on the ground that the  statement relied  upon by  the    High  Court  was relating to  clause 58  corresponding  to  Sec.  59  of  the Partnership. Act  and that  statement cannot  be taken  into consideration for  the purpose  of interpreting the relevant provisions of  the Partnership  Act. This  decision was  not noticed in Bidap’s case but the decision in Assam Railways & Trading Co.  Ltd relied upon by Mr. Singhvi was specifically referred to.  This decision  cannot therefore be taken as an authority for  the proposition  canvassed  by  Mr.  Singhvi. Further even in the land of its birth, the exclusionary rule has received  a serious  jolt in Black-Clawson International Ltd. v.  Paperwork Waldhef Ascheffenburg AC(2) Lord Simon of Claisdale in  his speech  while examining  the  question  of admissibility of Greer Report observed as under:           "At the very least, ascertainment of the statutory      objective  can   immediately  eliminate   many  of  the      possible meanings  that the  language of  the Act might      bear and if 526      an  ambiguity   still  remains,  consideration  of  the      statutory objective  is one  of the  means of resolving      it.           The  statutory   objective  is   primarily  to  be      collected from the provisions of the statute itself. In      these days,  when the long title can be amended in both      Houses, I  can see  no reason for having recourse to it      only in  case of an ambiguity-it is the plainest of all      the guides  to the general objectives of a statute. But      it will not always help as to particular provisions. As      to the  statutory objective  of these a report. leading      to the  Act is likely to be the most potent aid and, in      my judgment, it would be more obscurantism not to avail      oneself of it. here is, indeed clear and high authority      that it is available for this purpose".      And in  support of  this statement  of law, a number of cases were  relied upon by the learned Law Lord. It may also be mentioned  that Per  Curiam it was held that "where there is an  ambiguity in  a statute, the court may have regard to the Report of a Committee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute,  in order  to determine  the mischief which the statute was  intended to  remedy". Though the unanimous view was that  the report  of a committee presented to Parliament preceding the statute could be seen for finding out the then state of  the law  and the mischief required to be remedied, it must be stated that the majority were of the opinion that report could  not be looked at to ascertain the intention of Parliament. The  minority (per Lord Dilporne and Lord Simon) were of  the opinion that when a draft bill was enacted in a statute   without   any   alteration,   Parliament   clearly manifested   its    intention    to    accept    committee’s recommendation which would imply that Parliament’s intention was  to   do  what   committee  wanted  to  achieve  by  its recommendations. A  reference to Halsbury’s Laws of England, Fourth Edition, Vol. 44 paragraph 901, would leave no one in doubt that  ’reports of  commissions or committees preceding the enactment  of a statute may be considered as showing the mischief aimed  at and  the state  of  the  law  as  it  was understood to  be by  the legislature  when the  statute was passed.’ In  the footnote  under the  statement of law cases

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 48  

quoted amongst others are R. v. Ulugboja(1) R. v. Blexham(2) in which Eigth report of Criminal Law Revision Committee was admitted as  an extrinsic aid to construction. Therefore, it can be  confidently  said  that  the  exclusionary  rule  is flickering in its 527 dying embers  in its native land of birth and has been given a decent  burial by  this Court.  Even apart from precedents the basic  purpose underlying  all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament  in enacting  the legislation.  Legislation is enacted to  achieve a  certain object.  The object may be to remedy a  mischief or  to create some rights, obligations or impose duties. Before undertaking the exercise of enacting a statute,  Parliament  can  be  taken  to  be  aware  of  the constitutional principle  of judicial review meaning thereby the  legislation   would  be   dissected  and  subjected  to microscopic examination.  More’ often an expert committee or a Joint  Parliamentary committee  examines the provisions of the proposed  legislation. But  language being an inadequate vehicle of  thought comprising  intention, the eyes scanning the statute would be presented with varried meanings. If the basic purpose underlying construction of a legislation is to ascertain the  real intention  of the Parliament, why should the aids  which Parliament  availed of  such as  report of a special committee preceding the enactment, existing state of law, the environment necessitating enactment of legislation, and the  object sought  to be  achieved, be  denied to court whose function  is primarily  to give  effect  to  the  real intention of  the Parliament  in enacting  the  legislation. Such denial  would deprive  the court  of a  substantial and illuminating the  to construction. Therefore, departing from the earlier  English decisions  we are  of the  opinion that reports of  the committee  which preceded the enactment of a legislation,  reports   of  Joint  Parliamentary  Committee, report of  a commission  set up  for collecting. information leading to  the enactment  are permissible  external aids to construction. In  this connection,  it would be advantageous to  refer   to  a   passage  from   Crawford  on   Statutory Construction (page 388). It reads as under:           "The judicial  opinion on  this point is certainly      not quite  uniform and  there are American decisions to      the effect  that the  general history  of a statute and      the various  steps leading  upto an enactment including      amendments or  modifications of  the original  bill and      reports of  Legislative Committees can be looked at for      ascertaining the  intention of the legislature where it      is  in   doubt  but   they  hold  definitely  that  the      legislative history  is inadmissible  when there  is no      obscurity in the meaning of the statute".      In United  States v.  St.Paul M.M.  Rly. Co.(1)  it  is observed that 528 the  reports   of  a   committee,  including   the  bill  as introduced, changes  ’made in  the frame  of the bill in the course  of  its  passage  and  the  statement  made  by  the committee chairman  incharge of  it, stand  upon a different footing,   and    may   be    resorted   to   under   proper qualifications’. The  objection therefore  of Mr. Singhvi to our looking into the history of the evolution of the section with all its clauses, the Reports of Mudiman Committee and K Santhanam  Committee   and  such   other  external  aids  to construction must be overruled.      Tracing the  history of  cl. (2)  of Sec. 21 IPC with a view to ascertaining whether M.L.A. would be comprehended in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 48  

any of  the clauses of Sec. 12 so as to be a public servant, it must be noticed at the outset that Indian Penal Code is a statute  of  the  year  1860  when  there  were  no  elected legislatures and  a fortiori  there were  no M.L.As. Even if Moaulay is  to be  adjudged a  visionary, who could look far beyond his times yet in 1860 it was inconceivable for him to foresee the  constitutional development  of India  stages by stages and  to envisage the setting up elected legislatures, the  members   of  which  would  without  anything  more  be comprehended as  public servant  in any of the subclauses of Sec. 21.  Undoubtedly, framing of a legislation is generally not of  a transient  nature but it is enacted and put on the statute book  for reasonably  long period  until the society for  which   it   is   meant   undergoes   a   revolutionary transformation so as to make the law irrelevant or otiose. A visionary can  fores possible  changes which  may be  inter- connected with  the present  situation one  leading  to  the other. But  the East  India a  Company rule  which had  just ended in  1857 after  the first  war of independence, it was difficult to  divine the possible revolutionary changes that may come in by 1919. At any rate at the time when the Indian Penal Code was enacted. there was no elected legislature and therefore, there  was no M.L.A. In construing a statute more especially the  ancient statute,  the court  may look at the surrounding circumstances  when the  statute was enacted. In Halsbury’s  Laws   of  England,   Fourth  Edition,  Vol.  44 paragraph 898,  it is  observed  that  the  construction  of ancient statutes  may be  eludicated by what in the language of the courts is called contemporanea expositio, that is, by seeing how  they were  understood at the time when they were passed, Undoubtedly,  this doctrine  cannot  be  applied  to modern statutes  or indeed  to  any  statute  whose  meaning appears to  the court  to be  plain and  unambiguous. At any rate, one  can justifiably  say that  M.L.A.  could  not  be comprehended in any of the clauses of Sec. 21 to be a public servant when the Indian Penal Code was enacted in 1860. 529      The next  stage in  the historical evolution of the law with regard  to corrupt  actions of members of public bodies is the  one to  be found in a Bill introduced in 1925 called Legislative Bodies  Corrupt Practices  Act, 1925.  This Bill was introduced  to give effect to the recommendations of the Reforms Enquiry Committee known as Mudiman Committee. In the book ’Evolution  of Parliamentary  Privileges’ by  Shri S.K. Nag,  the   author  traced   the  steps  which  led  to  the introduction of  the Bill.  In the  statement of objects and reasons accompanying  the  Bill,  it  was  stated  that  the corrupt influencing  of votes  of members of the legislature by bribery,  intimidation and  like  should  be  made  penal offences under  the  ordinary  criminal  law  and  para  124 indicates  that   this  recommendation   was   a   unanimous recommendation of  the Committee  as a whole. Then comes the more important statement which may be extracted:           "The tender  of a  bribe to, or the receiving of a      bribe by,  a member  of a  legislature in  India as  an      inducement for  him to  act in a particular manner as a      member  of   the  legislature  is  not  at  present  an      offence."      The Bill  sought to fill in the lacuna. It thus follows that till 1925, it was clearly understood that the M.L.A. as the  holder  of  that  office  which  must  have  come  into existence by  the time  under the  Government of  India Act, 1919, was not a public servant falling in any of the clauses of Sec.  21 and  this lacuna  was sought  to be  remedied by introducing Chapter  9-B bearing  the heading of offences by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 48  

or  relating   to  members   of  Legislature   Bodies’.  The dictionary clause  in the Bill would have included M.L.A. in the expression  "Member of Legislative Bodies. The object of the Bill  was to  provide for punishment of corrupt practice by or  relating to members of Legislative Bodies constituted under the  Government of India Act. This was to be passed by the Central  Legislature. It  was  an  abortive  attempt  by members themselves  to be  brought within the purview of the penal law.  One can  write a  finale by saying that the Bill was not  enacted into  law. That  is the second stage in the history of evolution.      Before  we  proceed  further  in  the  journey,  it  is necessary to  take note  of  one intermediate stage to which our  attention  was  not  drawn  during  the  arguments.  In Prevention of  corruption Act,  1947 by  Sethi and  Anand at page 50,  it is mentioned that till Criminal Law (Amendment) Act, 1958  (Act No. II of 1958) was put on the statute book, Sec. 21  of the IPC consisted only of eleven clauses. Clause 12 530 was introduced  by the aforementioned Act and it read ’Every officer in  the service  or pay of a local authority or of a Corporation engaged  in  any  trade  or  industry  which  is established by  a Central,  Provincial or  state Act or of a Government Company  as defined in Sec. 617 of the  Companies Act, 1956’.  Obviously, as  incorporated clause 12 would not comprehend M.L.A.  and cl 9 as it stood till then, could not have comprehended him as would be presently pointed out. Cl. 12 introduced  by Act  II of 1958 is re-enacted as cl.12 (b) and it  is nobody’s  case that  M.L.A. is  covered in cl. 12 (b).      The next stage of development ma/ now be noticed. While participating in  the debate  on the  demand. for grants for the Ministry  of Home  affairs in June 1962, some members of the Lok Sabha specifically referred to the growing menace of corruption in  administration. In  reply to  the debate, the then Home Minister suggested that some Members of Parliament and if  possible some  other public  men  do  sit  with  the officers in  order to  review the  problem of corruption and make suggestions. Pursuant to this announcement, a Committee chaired by  Shri K.Santhanam,  M.P. was  appointed with nine specific terms  of reference  which inter alia included: "to suggest changes  which would ensure speedy trial of cases of bribery, corruption and criminal misconduct and make the law otherwise more  effective’.  This  Committee  submitted  its report on  March 31 1964. While examining the fourth term of reference extracted  hereinabove, the Committee in Section 7 of its  report considered the question of proposed amendment to Indian  Penal Code.  The Committee focussed its attention on the  definition of ’public servant’ in Sec. 21. Paragraph 7.6 is  most important  for the present purpose. It reads as under:           "7.6 Section  21 defines  "public servant’  Twelve      categories of  public servants  have been mentioned but      the present  definition requires  to be  enlarged.  The      ninth category  describes a  large variety  of officers      charged with  the performance  of different  kinds,  of      duties relating  to pecuniary  interests of  the State.      The last  sentence of  this  category,  namely,  "every      officer in  the service  or pay  of the  Government  or      remunerated by  fees or  commission for the performance      of  any  public  duty"  should  be  put  as  a  general      definition. After  the word  "government",  he  towards      "local authority", "public corporation", or "government      company" should  be added.’  The words  "engaged in any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 48  

    trade or industry" may also be deleted from the twelfth      clause of Section 21 as these words 531      have a  restrictive. effect.  It should  also  be  made      clear that  all Ministers,  Ministers of  State  Deputy      Ministers, Parliamentary  Secretaries  and  members  of      local authorities  come under the definition of ’public      servant’ A further category should be added to included      all persons  discharging adjudicatory  functions  under      any Union  or State Law for the time being in force. We      also consider  it necessary  to include  the  following      categories within  the definition  of the  term ’public      servant’:-           President, Secretary  and all  members of Managing      Committee of a registered Co-operative Society;           Office  bearers   and  employees  of  educational,      social, religious  and other  institutions, in whatever      manner established,  which receive aid in any form from      the Central or State Government".      This recommendation  led to  three important amendments in cls.  3, 9  and 12  of Sec. 21. The unamended clauses and the effect  of the  amendment in 1964 must be brought out in sharp contrast  so as  to appreciate the change made and its effect on the language employed. Clause as they stood prior to   Amended by the 1964      the 1964 Amendment                 Amendment. ------------------------------------------------------------ Third: Every Judge.                 Third: Every Judge in-                                 including any person empo-                                 wered by law to discharge,                                 whether by himself or as a                                 member of any body of per-                                 sons, any adjudicatory                                 functions; Ninth:: Every officer whose duty    Ninth: Every officer it is, as such officer to take, whose duty it is, as such receive keep or expend any      officer to take, receive, property of the Government,     keep, or expend any property or to make any survey,          on behalf of the Government, assessment, or contract on      or to make any survey, as- behalf of the Government or to  sessment or contract on be- execute any revenue-process,    half of the Government or to or to report, on any matter affec- 532 ting the pecuniary interest of  execute any revenue-process, the Government or to make       or to investigate, or to authenticate or keep any docu-  report, on any matter affec- ment relating to the pecuniary  ting the pecuniary interest interest of the Government,     of the Government or make or to prevent he infraction of  authenticate or keep any any law for the protection of   document relating to the of the  pecuniary interests of  pecuniary interests of the the Government, and every       Government, or to prevent officer in the service or pay   the infraction of any law of the Government or remunerat- for the protection of the ed by fees or commission for    pecuniary interest of the performance of  any public      Government. duty.      (Underlining ours); Twelfth: Every officer in the      Twelfth: Every person: service or pay of a local auth- (a) in the service or pay of ority or of a corporation       the Government or remune- engaged in any trade or indust- rated by fees or commission ry which is established by a   for the performance of any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 48  

Central, Provincial or State    public duty by the Govern- Act or of a Government Company  ment; as defined in section 617 of the Companies Act, 1956.                                 (b) in the service or pay of                                 local authority, a corpora-                                 tion established by or under                                 Central, Provincial or State                                 Act or a Government Com-                                 pany as defined in section                                 617 of the Companies Act,                                 1956.      A bare  comparison of  the two  cls. (9) and (12) would reveal the  change brought  by the  Amending Act 40 of 1964. The last part (underlined portion) in the unamended cl. (9): ’every officer  in the  service or  pay of the Government or remunerated by fees or commission for the performance of any ’public duty’  has been  severed from  the  9th  clause  and incorporated as an independent clause (12) (a). The original clause (12) was deleted and has been re-enacted, as cl. (12) (b) with minor modifications. This history of development is noteworthy for  a very  compelling reason  to  be  presently mentioned. 533 discretionary power  and this included Minister both Cabinet and State,  Deputy Ministers  and parliamentary Secretaries. M.L.As were not considered holding political offices capable of abuse  of power.  The Committee  recommended amendment of the definition  of the expression ’public servant in Sec. 21 IPC so  as to  include Ministers  of all rank of Central and State level  and Parliamentary Secretaries in the definition of ’public  servant’. The  Committee did  not recommend that the  proposed   amendment  should   comprehend  M.L.A.   The Committee separately dealt with the M.L.As in paragraph 11.4 in Sec.  11 of the Report’. After stating that, ’next to the Minister, the  integrity of  Members of  Parliament  and  of legislatures in the State will be a great factor in creating a favourable  social climate  against corruption...... It is desirable that  a Code  of Conduct for legislators embodying these and  other principles  should be  framed by  a special committee  of   representatives  of   Parliament   and   the legislatures nominated  by the  Speakers and  Chairman. This Code  should   be  formally   approved  by   resolutions  of Parliament and  the legislatures and any infringement of the Code should  be treated  as a  breach  of  privilege  to  be inquired into  by the  Committee of  privileges,  and  if  a breach  is  established,  action  including  termination  of membership may  be taken.  Necessary snactions for enforcing the Code of Conduct should also be brought into existence".      The  Government   minutely  examined  the  Report.  The recommendations of  the Committee which were accepted by the Government led  to the  introducing of  The  Anti-Corruption Laws (Amendment)  Bill 1964  (Bill No.  67 of  1964) in  the Parliament. The  salient features of the Bill worth-noticing are that  cl. (3)  of Sec.  21 was proposed to be amended as recommended with  minor structural change. Cl. (9) of Sec 21 was dissected  as recommended  and its  last part ’and every officer  in  the  service  are  pay  of  the  Government  or remunerated by fees or commission for the performance of any public duty’ was detached and re-enacted as cl. (12) (a) and the original  cl. (12)  was renumbered  as Cl. (12) (b) with slight modification.  This would  imply that  no attempt was made to  bring in  M.L.A. within the conspectus of clause in Sec. so  as to  make him public servant. The position of the Minister was  slightly fluid  but a  clear  picture  emerged

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 48  

during the  debate on  the Bill  in the Lok Sabha. Mr. Hathi Minister-incharge while  piloting the  Bill, on  November 7, 1964 amongst others stated that the will not deal with those recommendations  which   had  not   been  accepted   by  the Government, but  would explain  them later, if any  point is raised in that behalf, (See Lok Sabha Debates (Third 534 that he  will not  deal with those recommendations which had not been  accepted by the Government, but would explain them later, if any point is raised in that behalf. (See Lok Sabha Debates (Third  Series), Vol. XXXV, Col. 245) While replying to the debate, Mr. Halhi stated that the code of conduct has already   been    evolved   for    Ministers   because   the recommendation  of   Santhanam   Committee   for   including Ministers of  all ranks and Parliamentary Secretaries in the definition of  ’public servant’  was  not  accepted  by  the Government. But  there is  an  interesting  caveat  to  this statement to  which we  would presently  revert  He  further stated  that   the  specific   recommendations   about   the definition ’public  servant’ to  include Ministers  has  not been accepted and included in the Bill because Ministers are not merely public servants but they have a greater moral and social responsibility  towards the  people. Later  on in the debate it was conceded that the Minister is already included in the  definition  of  ’public  servant’  even  before  the proposed amendment  in view  of the  decision of the Supreme Court in  Shiv Bahadur  Singh’s case  in which  Minister was held to  be a  public servant. It was further stated that in view of  this judgment,  the Government was advised that the recommendation of  the  Santhanam  Committee  for  inclusion specifically of  Ministers of  all  rank  and  Parliamentary Secretaries was  redundant. (Sec  Lok Sabha  Debates  (Third Series) Vol. 35 cols. 729 and 731). Whatever that may be the conclusion is  inescapable that till 1964 at any rate M.L.A. was not  comprehended in  the definition of ’public servant’ in Sec.  21. And  the Santhanam  Committee did not recommend its inclusion  in the  definition of public servant, in Sec. 21.      Bill No.  47 of 1964 was enacted as Act 40 of 1964. Now if prior  to the  enactment of Act 40 of 1964 M.L.A. was not comprehended as  a public  servant  in  Sec.  21,  the  next question is:  did the  amendment make  any difference in his position. The  amendment keeps  the law virtually unaltered. Last part  of cl.9  was enacted as cl. 12 (a). If M.L.A. was not comprehended  in  clause  9  before  its  amendment  and dissection, it  would make  no difference  in the meaning of law if  a portion  of cl.  7 is re-enacted as cl. 12 (a). It must follow  as a  necessary corollary that the amendment of Cls. (9)  and (12)  by Amending Act 40 of 1964 did not bring about any  change in  the interpretation  of cl. (9) and cl. (12)(a) after  the amendment of 1964. In this connection, it would be advantageous to refer to G.A. Monterio v. The State of Ajmer(1)  followed and  approved in The State of Ajmer v. Shiji Lal(2) in both of 535 which cl. (9) as it stood prior to its amendment came up for construction.   In the first mentioned case, the accused was a chaser  in the  Railway Carriage Workshop at Ajmer. He was held to  be  an  officer  in  the  pay  of  the  Government, comprehended in  the last  part of  cl. (9) of Sec. 21 as it then stood.  In the  second case, accused was a teacher in a railway school  at Phulera.  His contention had found favour with the  learned Judicial  Commissioner but in reaching the conclusion, he  appeared to  have ignored  the last  part of cl.(9) prior  to its amendment in 1964. In the appeal by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 48  

State, this Court held that the case of the accused would be covered by  the last  part of  cl. (9)  because the  accused fulfilled the twin conditions of either being in the service or  pay  of  the  Government  and  was  entrusted  with  the performance of  a public duty. It may also be mentioned that the last  three words  ’by the Government’ found in cl. (12) (a) after  the amendment  were not there in the last part of cl. 9’.  The question  was whether addition of words ’by the Government’ made  any difference  in the  interpretation  of last part  of cl.  (9) which  is substantially re-enacted as cl.  (12)(a).   The  Gujarat   High  Court   in   Manshanker Prabhashanker Dwivedi  and Anr.  v. The State of Gujarat (1) trace    the  history  of  amendment  that  payment  by  the Government was implicit in cl. (9) through the words ’by the Government’ were  not there  and were  added to  cl. (12)(a) after re-enacting  the last part of cl. (9) as (12)(a). This becomes clear  from the decision of this Court in the appeal against the  judgment of the Gujarat High Court in the State of Gujarat  v.  Manshanker  Prabhashnker  Dwivedi.  (2)  The accused in  that  case  was  charged  for  having  committed offences under  Sec. 161 IPC and Sec. 5 (2) of the 1947 Act. The facts  alleged were  that the  accused respondent before this Court  was an  examiner appointed by the University for the first  year B.Sc.  examination. He  was alleged  to have accepted  gratification   of  Rs.   500  other   than  legal remuneration for showing favour to a candidate by giving him more  marks  than  he  deserved  in  the  Physics  practical examination. The learned special Judge convicted him. In the appeal, the High Court after taking note of cl. 9 and cl. 12 of Sec.  21 prior  to their amendment by Act 40 of 1964 held that for  cl. 9 to apply the person should be an officer ’in the service  or pay of the Government or remunerated by fees or commission  for the  performance of  any public duty ’and that such  pay or  remuneration or commission must come from the Government’. It was further held that the context of the whole of the Ninth Clause, as 536 remuneration or  in respect  of the  performance  of  public duty.’ It  was  further  held  that  the  use  of  the  word ’officer’ read  in the  context  of  the  words  immediately preceding the last part would indicate that the remuneration contemplated was  remuneration by Government. The High Court further  held  that  the  amendment  made  in  1964  and  in particular the  addition of the words ’by the Government’ in sub-cl.(a)  of   clause  Twelfth   showed  the   legislative interpretation of the material portion of clause Ninth as it stood  before   the  amendment  under  consideration,  After extraction these  reasons which  appealed to the High Court, this Court  observed than  the reasoning  of the  High Court does not  suffer fro many infirmity. It would transpire that payment by the Government was implied without the use of the expression, by  the Government  in cl.  9. The words ’by the Government’  are   added  in   cl.  (12)(a)   amended.  This apparently does  not make any difference. It would therefore necessarily follow  that the  amendment of  cls (9) and (12) did  not   bring  about  any  change  in  the  coverage  and construction of  the two  clauses prior  to and  since their amendment. If  that be  so, it  would  follow  as  necessary corollary that  if M.L.A.  was not  a public servant with in the meaning of the expression prior to Act 40 of 1964, since the Act,  the law, legal effect and on average of expression public servant  remains unaltered and hence, M.L.A. is not a ’public servant’  comprehended in  cl. (12)(a). Thus looking to the  history and  evolution of  Sec. 21  as traced, it is clear that  till 1964 M.L.A. could not have been conceivably

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 48  

comprehended in  expression ’public servant’ and the law did not undergo any change since the amendment. On the contrary, the  recommendation   of  the   Santhanam  Committee   which recommended  inclusion   of  Ministers   and   Parliamentary Secretaries but  not of M.L.A. separately recommended a code of conduct  for M.L.A  for seving  them from  the spectre of corruption would  clearly and  unmistakably show  that  till 1964 M.L.A.  was  not  comprehended  in  expression  ’public servant’ in Sec. 21 IPC and the amendment by Amending Act 40 of 1964  did not  bring about  the slightest  change in this behalf concerning  the position  of M.L.A.  Therefor,  apart from anything  else, on  historical  evolution  of  Sec.  21 adopted  as   an  external  aid  to  construction,  one  can confidently say  that M.L.A.  was not  and is  not a ’public servant’ within  the meaning of the expression in any of the clauses of Sec. 21 IPC.      Assuming that  it would not be legally sound or correct according  to  well-accepted  canon  of  construction  of  a statute to  construe Sec.  21 (12)  (a) by  mere  historical evolution of  the section  and  the  constitutionally  valid approach would be to look at the language em- 537 Sec. 21 (12) (a) by mere historical evolution of the section and the  constitutionally valid approach would be to look at the language  employed in  the section  and  upon  its  true construction, ascertain  whether M.L.A.  is a public servant within the meaning of the expression in that sub-clause. The learned special  Judge held  that M.L.A. is a public servant because he  is either  in the  pay of  the Government  or is remunerated by  fees for  the performance of any public duty by the Government.      A person  would be  a public servant under cl. (12) (a) if (i) he is in the service of the Government; or (ii) he is in the  pay of the Government; or (iii) he is remunerated by fees or commission for the performance of any public duty by the Government.      On  behalf   of  the   complainant-appellant,  it   was contended that in order to make a person a public servant on the ground  that he  is in  the pay of the Government, there must exist  a  master-servant  relationship  or  a  command- obedience relationship,  and if  these elements  are  absent even if  a person  is in the pay of the Government, he would not be a public servant. On behalf of the respondent, it was countered asserting  that  the  concept  of  master  servant relationship   or    command-obedience    relationship    is comprehended in  the  first  part  of  cl.  (12)  (a)  which provides that  every person in the service of the Government would be  a public  servant. It  was urged  that if even for being comprehended  in the second part of the clause namely, a person  would be  a public  servant if he is in the pay of the Government,  their  ought  to  be  a  master-servant  or command-obedience relationship,  the  Legislature  would  be guilty of  tautology and the disjunctive ’or’ would lose all significance. The use of the expression ’or ’ in the context in which  it is  found in  cl. (12)(a)  does appear  to be a disjunctive.  Read   in  this   manner,  there   are   three independent categories comprehended in cl. (12) (a) and if a person falls  in any  one of  them, he  would  be  a  public servant. The  three categories  are as  held by  the learned special  Judge;   (i)  a   person  in  the  service  of  the Government; (ii)  a person in the pay of the Government; and (iii) a  person remunerated  by fees  or commission  for the performance of any public duty the Government. One can be in the service  of the Government and may be paid for the same. One can be in the pay of the Government without being in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 48  

service of  the  Government  in  the  sense  of  manifesting master-servant or command-obedience relationship. The use of the expression ’or’ does appear to us to be a disjunctive as contended on  behalf of  the respondent.  Depending upon the context, 538 ’or’ may  be read ’and’ but the court would not do it unless it is  so obliged because ’or’ does not generally mean ’and’ and ’and’  does not  generally  mean  ’or’.  (See  Green  v. Premier Glyrhonwy State Company Ltd.’(1) Babu Manmohan Das & Ors. v. Bishun Das, (2) Ramta Prasad Aggarwal etc. Executive Engineer, Balladgarh  & Anr.(3)  and several  other which we consider it unnecessary to enumerate here.      Once it  is accepted  that ’a  person in the pay of the Government’ connotes  a specific and independent category of public servant  other than’  a person  in the service of the Government’ does  not inhere  a master-servant  or  command- obedience relationship  between the  Government as the payer and the  public servant as the payee, no part of the section is rendered  superfluous. Each  part will  receive  its  own construction. We  therefore consider it unnecessary to refer to those  decisions, which  were  cited  on  behalf  of  the respondent that  the correct  canon of  construction  to  be adopted in such a situation is that effect must be given, if possible,  to  the  words  used  in  the  statute,  for  the Legislature is  deemed not  to waste  its words  or  to  say anything in vain.      What then  is the true interpretation of the expression ’in the pay of the  Government’. In other words, is M.L.A. a person ’In  the pay  of the  Government’ so  as to be public servant within the meaning of the expression in Sec. 21 (12) (a). The  expressions that call for construction are (i) ’in the pay of’ and (ii) ’Government’.      Art. 195  of the Constitution provides that’ Members of the Legislative  Assembly and  the Legislative  Council of a State  shall  be  entitled  to  receive  such  salaries  and allowances as  may from  time to  time be  determined by the Legislature of the State by law and, until provision in that respect is  so made,  salaries and  allowances at such rates and upon  such conditions  as were  immediately  before  the commencement of  the Constitution  applicable in the case of members of  the Legislative  Assembly of  the  corresponding Province.’ Armed  with this  power,  the  Maharashtra  State Legislative   Assembly    has   enacted   ’The   Maharashtra Legislature  Members’  Salaries  and  Allowances  Act,  1956 (Bombay Act  XLIX of 1956)’. Sec. 3 (1) provides that ’there shall be paid to each member during the whole of his term of office a salary at the 539 rate of  Rs. 450/-per  month and  sub-sec. (2) provides that ’there shall  be paid to each Member during the whole of his term  of   office  per  month  a  sum  of  Rs.  400/-  as  a consolidated allowance  for  all  matters  not  specifically provided or  by under  the provision  of the  Act’.  Sec.  4 provides for  daily allowances to be paid to Members. Sec. 5 provides for  travelling allowance  to be  paid to  Members. Sec. 5AC  provides for  a free travel by railway and steamer by a  Member subject  to the  conditions therein prescribed. Members are  also eligible  for some allowances as specified in various  sections of the Act. The Maharashtra Legislature Members Pensions  Act, 1976  makes provision  for payment of pension with  effect from  April 1,  1981 at the rate of Rs. 300 per  month to every person who has served as a Member of the State Legislature for a term of 5 years subject to other conditions prescribed in the section. There is a similar Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 48  

which makes  provisions for  salaries and  allowances of the Ministers of Maharashtra State.      Undoubtedly, M.L.A. receives a salary and allowances in his capacity as M.L.A. Does it make him a person ’in the pay of the  Government’? Our  attention has  been drawn  to  the meaning of  the word  ’pay’ in different dictionaries and to the decision  in M.  Karunanidhi v.  Union of India(1) where after ascertaining  the meaning  of the  word ’pay’ given in different  dictionaries,   the  Court   observed  that   the expression ’in  the pay  of’ does not signify master-servant relationship. The  word ’pay’  standing by itself in open to various shades  of meaning  and when  the word  is used in a phrase ’in  the pay  of’.  it  is  more  likely  to  have  a different connotation  than when  standing by itself. Before referring to  the various  shades of  meaning set out in the dictionaries, it  would be  advisable to  caution  ourselves against an  unrestricted reference to dictionaries. Standard dictionaries as  a rule  give in  respect of  each  woad  as meanings in  which the  word has  either been  used or it is likely to  be used  in different  contexts and  connections. While it may be permissible to refer to dictionaries to find out the  meaning in which a word is capable of being used or understood in  common  parlance,  the  well-known  canon  of construction should not even for a minute be overlooked that the meaning  of the  words and expressions used in a statute ordinarily take  their colour from the context in which they appear. In  Dy. Chief  Controller of  Imports & Exports, New Delhi v. R.T. Kosalam & Ors.(2) this Court observed as under 540           "It is not always a safe way to construe a statute      or  a   contract  by   dividing  it  by  a  process  of      etymological dissection and after separating words from      their  context   to  give  each  word  some  particular      definition  given   by  lexicographers   and  then   to      reconstruct the  instruments upon  the basis  of  those      definitions. What particular meaning should be attached      to words  and phrases  in a given instrument is usually      to be  gathered from  the context,  the nature  of  the      subject matter,  the purpose  of the  intention of  the      author and  the effect  of giving  to them  one or  the      other  permissible   me  aning  on  the  object  to  be      achieved. Words  are after all used merely as a vehicle      to convey the idea of the speaker or the writer and the      words have  naturally, therefore, to be so construed as      to  fit   in  with   the  idea   which  emerges   on  a      consideration of the entire context. Each word is but a      symbol which  may stand for one or a number of objects.      The context, in which a word conveying different shades      of meanings  is used,  is of  importance in determining      the precise  sense which  fits in  with the  context as      intended to be conveyed by the author".      In State  Bank of  India v.  N. Sundara  Money, Krishna Iyer, J.  speaking for  the Court observed in his inimitable style that  ’dictionaries are  not  dictators  of  statutory construction where  the benignant mood of a law, may furnish a different  denotation’. With  this caution, we may briefly refer to the meaning of the expression ’pay’ and ’in the pay of’ given by different dictionaries.      As  far   as  the  expression  ’pay’  is  concerned,  a Constitution Bench  of  this  Court  in  Karunanidhi’s  case referred to various dictionaries and concluded that the word ordinarily means  ’salary, compensation, wages or any amount of money  paid to  the person who is described as in the pay of the  payer’. Serious exception was taken on behalf of the appellant that no canon of construction would permit picking

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 48  

out shades of meaning of word ’pay’ and then read the phrase ’in the  pay of’  as synonymous  with the word ’pay’. On the other hand,  it was  asserted that the point is concluded by the observation  of the  Constitution Bench  that ’so far as the  second   limb  of  the  clause,  ’in  the  pay  of  the Government’ is concerned, that appears to be of a much wider amplitude so  as to  include within  its ambit even a public servant who 541 pay of  the other  person and  yet there may not be a master servant  relationship   between  them.  The  court  did  not ascertain the  meaning ascribed to phrase ’in the pay of’ in different dictionaries.  The phrase  ’in the  pay of’  would ordinarily  import   the  element   of  employment  or  paid employment or  employed and paid by the employer. In Concise Oxford Dictionary,  7th edition  at page  753,  the  meaning assigned to  the expression  ’in the  pay  of’  is  ’in  the employment of’. In New Collins Concise English Dictionary at page 831,  ’in the  pay of  ’carries one  meaning as ’one in paid employment’.  In Websters  New  World  Dictionary,  the phrase ’in  the pay  of’ carries  the meaning  ’employed and paid by’.  Relying on  all these  shades of  meaning, it was urged that  the phrase  ’in the  pay  of’  does  necessarily import the  element of  master-servant relationship  and its absence cannot  be countenanced.  It was submitted even if A is paid  by B  a sum styled as pay unless B is servant of A, it cannot be said that B is in the pay of A. We see force in this  submission.   However,  it  is  not  implicit  in  the expression ’in  the pay  of’ that  there ought  to  exist  a master-servant relationship between payer and payer. One can be in  the pay  of another  without being  in employment  or service of  the other.  We are  not inclined  to accept  the submission that  ’in the  pay of’ must in the context, imply master-servant relationship  for the obvious reason that the court has  to construe  the phrase  ’in the  pay of’  in its setting where  it is  preceded by  the  expression  ’in  the service of  the Government’  and succeeded by the expression ’remunerated by  fees or  commission for  the performance of any public  duty by  the Government’.  The setting  and  the context are  very relevant for ascertaining the true meaning of  the   expression.  In  order  to  avoid  the  charge  of tautology, the  phrase ’in the pay of the Government’ in cl. (12) (a)  may comprehend  a situation that the person may be in the pay of the Government without being in the employment of the  Government or  without there  being a master-servant relationship between  the person  receiving the  pay and the Government as payer.      It was  however, contended  that the question whether a person ’in the pay of the Government’ is ipso facto a public servant is no more res integra and concluded by the decision of the  Constitution Bench  in Karunanidhi’s  case? In  that case before  adverting to  the  dictionary  meaning  of  the expression ’pay’,  the Constitution  Bench speaking  through Fazal Ali, J. observed as under at page 282:      "We are  of the  opinion that so far as the second limb ’in the  pay of  the Governments’ is concerned, that appears to be of 542           "We are  of the  opinion that so far as the second      limb ’in  the pay of the Government’ is concerned, that      appears to  be of  a much  wider  amplitude  so  as  to      include within  its ambit  even public  servant who may      not be  a regular  employee receiving  salary from  his      master".      The Court further observed that "the expression ’in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 48  

pay  of’   connote  that   a  person   is  getting   salary, compensation, wages  or any  amount of money. This by itself however, does  not lead to the inference that a relationship of master  and servant  must necessarily  exist in all cases where a  person is  paid salary". We are also of the opinion that the  phrase ’in  the pay  of the  Government’ does  not import of  necessity a  master-servant relationship.  It  is perfectly possible to say that a person can be in the pay of the Government if he is paid in consideration of discharging an assignment  entrusted to  him by  the Government  without there  necessarily   being  a   master-servant  relationship between them.  It is not unusual in common parlance to speak of a  person being  in the  pay of another if he is paid for acting at the behest or according to the desire of the other without the  other being his master and he the servant, that is to  say without  the control over the manner of doing the work which a master-servant relationship implies. It is such a category  in addition  to the  one ’in  the service of the Government’  that  is  sought  to  be  comprehended  in  cl. (12)(a). In  respect of  the extracted  observation  of  the Constitution Bench,  there is  no attempt to distinguish the decision in  Karunanidhi’s case  and therefore,  it  is  not necessity to  consider the decisions cited in support of the submission that  a judgment  of the Supreme Court especially of the  Constitution Bench  cannot be  distinguished lightly and is  binding on  us and  unless questions  of fundamental importance to national life are involved, need not be by us. We must  however point out that the ratio of the decision in Karunanidhi’s case is not what is extracted hereinbefore but the ratio  is to be found at page 290 where the Constitution Bench held  the Chief  Minister to  be a  public servant  as comprehended in cl. (12)(s) of Sec. 21 on the finding:           "1. That  a Minister  is appointed or dismissed by      the Governor  and is,  therefore,  subordinate  to  him      whatever be the nature and status of his constitutional      functions.           2. That a Chief Minister or a Minister gets salary      for the  public work  done or the public duty performed      by him.           3. That  the said  salary is  paid  to  the  Chief      Minister or the Minister from the Government funds". 543      It would appear at glance that no argument was advanced and none has been examined by the Constitution Bench bearing on the  interpretation of the expression ’Government’ in cl. (12)(a). It  was assumed  that salary and allowances paid to the Chief  Minister are  by Government. What does expression ’Government’ in  the clause  connote was  not even examined. And it  is on  the aforementioned  finding  that  the  Chief Minister was  held to  be a public servant but that does not conclude the matter.      This is  not the end of the matter. The question may be posed thus:  ’Even if  M.L.A. receives salary and allowances under the  relevant  statute,  is  he  in  the  pay  of  the Government’?  In  other  words,  what  does  the  expression ’Government’ connote?      There is a short and a long answer to the problem. Sec. 17 IPC  provides that  ’the  word  Government’  denotes  the Central Government or the Government of a State’. Sec. 7 IPC provides that  ’ever expression  which is  explained in  any part of  the Code,  is used  in every  part of  the Code  in conformity with  the explanation’.  Let  it  be  noted  that unlike the  modern statute  Sec. 7  does not provide ’unless the context  otherwise indicate’  a phrase that prefaces the dictionary clauses  of  a  modern  statute.  Therefore,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 48  

expression ’Government’  in Sec. 21 (12)(a) must either mean the  Central  Government  or  the  Government  of  a  State. Substituting the  explanation, the  relevant portion of Sec. 21 (12) (a) would read thus: ’Every person in the pay of the Central  Government   or  the   Government  of  a  State  or remunerated by fees or commission for the performance of any public duty by the Central Government or the Government of a State’. At  any rate,  the  Central  Government  is  out  of consideration. Therefore,  the question  boils down to this: whether M.L.A. is in the pay of the Government of a State or is remunerated  by fees  for the  performance of  any public duty by the Government of a State ?      In  the   debate  between  the  Presidential  form  and Parliamentary form  of democracy,  during the  early days of the Constituent  Assembly, the  balance tilted  in favour of Parliamentary form  of Government.  Mr. K. M. Munshi, one of the  members   of  the  Drafting  Committee  spoke  in  this connection as under:           "We must  not forget  a very  important fact that,      during the  last hundred  years, Indian public life has      largely  drawn   upon   the   traditions   of   British      Constitutional Law. Most of us have 544      looked up  to the  British model  as the  best. For the      last thirty or forty years, some hind of responsibility      has been  introduced in  the governance of the country.      Our constitutional traditions have become parliamentary      and we  have now  all our Provinces functioning more or      less on the British model."      In Rai  Sahib Ram  Jawaya Kapur  & Ors. v. The State of Punjab a Constitution Bench of this Court observed as under:           "Our   Constitution,   though   federal   in   its      structure, is  modelled on  the  British  Parliamentary      system where  the  executive  is  deemed  to  have  the      primary   responsibility   for   the   formulation   of      governmental  policy  and  its  transmission  into  law      though the  condition precedent to the exercise of this      responsibility is  its retaining  the confidence of the      legislative branch of the State".      It  was   further  observed   that   "in   the   Indian Constitution executive  as in  England and  the  Council  of Ministers  we   have  the   same  system   of  parliamentary consisting, as  it does,  of the  members of the legislature is, like,  the British  Cabinet ’a  hyphen  which  joins,  a buckle which  fastens the  legislative part  of the State to the executive  part". In  Shamsher Singh  & Anr. v. State of Punjab, a  seven  Judges  Bench  unanimously  overruled  the decision in  Sardari Lal v. Union of India and Ors. and held that ’our  Constitution embodies generally the Parliamentary or Cabinet  system of  Government of  the British Model both for the  Union and  the States’.  This  view  has  not  been departed from.  Now  in  parliamentary  form  of  Government modelled on  British model,  the executive,  legislature and judicial powers  are  in  the  main  entrusted  to  separate instruments of  the State.  It is not for a moment suggested that there  is strict or water-fight division of powers, but the functions  are certainly  divided. In Halsbury’s Laws of England, Fourth  Edition, Vol.  8 para  813,  separation  of executive,  legislative   and   judicial   powers   in   the Westminster Model have been adverted to. It reads as under:           "It is  clear that  the powers  of government  are      divided. The executive, legislative and judicial powers      are in the main 545      entrusted to  separate instruments  of the  State;  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 48  

    local government  is further  administered  separately.      Thus  the   original  concentration  of  power  in  the      Sovereign no  longer exists;  in the eighteenth century      this division  of the powers of government seemed to be      such  an   essential  characteristic   of  the  English      Constitution  that  it  was  made  the  basis  for  the      doctrine of  separation of powers. This doctrine, which      is to  the effect  that in a nation which has political      liberty as the direct object of its constitution on one      person or  body of  persons  ought  to  be  allowed  to      control the legislative, executive and judicial powers,      or any  two of  them, has  never  in  its  strict  form      corresponded  with  the  facts  of  English  government      mainly because,  although the  functions and  powers of      government are largely separated, the membership of the      separate instruments  of state  overlap.  Only  in  one      aspect of  the constitution  can it  be said  that  the      doctrine  is  strictly  adhered  to,  namely,  that  by      tradition,  convention   and  law   the  judiciary   is      insulated from political matters".      Parliament that  is the  Legislature exercises  control over the  executive branch of the Government because it is a postulate of Parliamentary form of Government that Executive is responsible  to  the  Legislature.  In  other  words  the Government of  the country  is controlled  by a ministry and Cabinet chosen  by  the  electorate  which  while  remaining responsible to the electorate is responsible directly to the Legislature and  such effective  means of exercising control is that  any expense  from. Consolidated  Fund of  the State must have  been earlier  placed before  the Legislature.  In Halsbury’s Laws  of England,  Fourth Edition,  Vol. 34  para 1005, it  is stated  that Parliament  exercises control over the  actions   of   the   executive   government   and   the administration of  the laws  it has enacted in various ways, one such  being by the doctrine of the constitution by which supply is  granted annually by the House of Commons and must receive  legislative  sanction  each  year  and  the  supply granted must  be appropriated to the particular purposes for which it  has been  granted. It may also be noticed that the staff of  the House  of Commons is appointed by the House of Commons Commission comprising the Speaker, the Leader of the House of the Commons, a member of the House nominated by the Leader of  the opposition  and three other members appointed by the  House. This  Commission is  charged with  a duty  to determine the  number and  remuneration and  other terms and conditions of  service. This  Commission is also responsible for laying before 546 the  House   an  estimate  of  the  expenses  of  the  House departments and  of any  other  expenses  incurred  for  the service of the House of Commons. (ibid para 1155).      Let us turn to relevant provisions of the Constitution. Part VI  of the  Constitution provides  that ’the  executive power of the State shall be vested in the Governor and shall be exercised  by him  either directly  or  through  officers subordinate to  him in  accordance with  the  Constitution.’ Chapter III in Part VI provides for State Legislature. Every State is  to have  a Legislature  which shall consist of the Governor and  it can  be unicameral or bicameral as the case may be  Where the  State has  a unicameral  legislature, the assembly is  called Legislative  Assembly. Art. 170 provides for members  of the  Legislative Assembly  being  chosen  by direct  election  from  territorial  constituencies  in  the State. Arts.  178 to  186 provide  for officers of the State Legislatures such  as the  Speaker and Deputy Speaker of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 48  

Legislative Assembly  and Chairman  and Deputy  Chairman  of Legislative Council  as  the  case  may  be,  their  powers, functions and  their either  vacating the  office or removal from the  office. Art.  187 (1)  provides that ’the House or each House  of the  Legislature of  a  State  shall  have  a separate secretarial staff’. Marginal note of the article is ’Secretariat of  State Legislature’. Sub-art.(2) of Art. 187 provides that  ’the  Legislature  of  a  State  may  by  law regulate the  recruitment, and  the conditions of service of persons appointed,  to the secretarial staff of the House or Houses of  the Legislature  of the  State’. Art. 266 obliges the  State  to  set  up  its  Consolidated  Fund.  Art.  203 prescribes the  procedure with  respect  to  estimates.  The estimates  as   relate  to   expenditure  charged  upon  the Consolidated Fund  of a  State shall not be submitted to the vote of  the Legislative  Assembly but the discussion in the Legislature is  permissible thereon. However, so much of the said. estimates  as relate  to other  expenditure  shall  be submitted  in   the  form  of  demands  for  grants  to  the Legislative Assembly,  and the  Legislative  Assembly  shall have power to assent, or to refuse to assent, to any demand, or to  assent to  any demand  subject to  a reduction of the amount  specified   therein.  In  other  words,  Legislative Assembly has  complete power  of purse.  Art. 204  casts  an obligation to  introduce a Bill to provide for appropriation out of  the Consolidated  Fund of  the State  of all  moneys required to meet-(a) the grants so made by the Assembly; and (b) the  expenditure charged on the Consolidated Fund of the State but  not exceeding in any case the amount shown in the statement previously  laid before  the House  or  Houses.  A conspectus of  these provisions  clearly indicate  that  the Legislature enjoys the power of 547 purse.  Even   with  regard   to  expenses  charged  on  the Consolidated Fund  of the State to be set up under Art. 266, an  appropriation   bill  has   to  be  moved  and  adopted, undoubtedly, the  same would  be non-votable.  And it is not disputed that  salaries and allowances payable to M.L.A. are not charged  on the  Consolidated Fund  of the  State.  This probably is  an emulation  of the situation in England where salary and  allowances of  the members of the Parliament are not  charged  on  the  Consolidated  Fund.  As  a  necessary corollary, it would be a votable item.      There thus  is a  broad division  of functions  such as executive, legislative and judicial in our Constitution. The Legislature lays  down the broad policy and has the power of purse. The executive executes the policy and spends from the Consolidated  Fund   of  the   State  what  Legislature  has sanctioned.  The   Legislative  Assembly   enacted  the  Act enabling to  pay to  its members  salary and allowances. And the members  vote the  grant and  pay  themselves.  In  this background even  if there  is an  officer to  disburse  this payment or  that a  pay bill has to be drawn up are not such factors being  decisive of the matter. That is merely a mode of payment,  but the  M.L.As. by  a vote  retained the  fund earmarked for  purposes of  disbursal for pay and allowances payable to  them under the relevant statute. Therefore, even though M.L.A.  receives pay and allowances, he is not in the pay of  the State  Government because Legislature of a State cannot be comprehended in the expression ’State Government’.      This becomes further clear from the provision contained in Art.  12 of  the Constitution  which provides  that  ’for purposes of Part III, unless the context otherwise requires, "the State"  includes the Government and Parliament of India and the Government and the Legislature of each of the States

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 48  

and all  local or  other authorities within the territory of India or  under the control of the Government of India’. The expression  ’Government   and  Legislature’,   two  separate entities, are  sought  to  be  included  in  the  expression ’State’ which  would mean  that otherwise  they are distinct and separate entities. This conclusion is further reinforced by the  fact that the executive sets up its own secretariat, while Art.  187 provides  for a  secretarial  staff  of  the Legislature under  the control  of the  Speaker, whose terms and conditions  of the  service will  be determined  by  the Legislature and not by the executive. When all these aspects are pieced  together, the expression ’Government’ in Sec. 21 (12)(a)  clearly   denotes  the   executive  and   not   the Legislature. M.L.A.  is certainly  not in  the  pay  of  the executive. Therefore, 548 the  conclusion  is  inescapable  that  even  though  M.L.A. receives pay and allowances, he can not be said to be in the pay of  the Government  i.e. the  executive. This conclusion would  govern  also  the  third  part  of  cl..(12)(a)  i.e. ’remunerated by  fees for  performance of any public duty by the Government’.  In other  words, M.L.A. is not remunerated by fees paid by the Government i.e. the executive.      It was also contended that M.L.A. is not performing any public duty.  It is  not necessary  to examine  this  aspect because it would be rather difficult to accept an undly vide submission that  M.L.A. is  not performing  any public duty. However, it  is unquestionable that he is not performing any public duty  either directed  by the  Government or  for the Government. He  no doubt  performs public duties cast on him by the Constitutional and his electorate. He thus discharges constitutional functions for which he is remunerated by fees under the Constitution and not by the Executive.      It was  further contended  that on  the analogy  of the decision in  His Majesty the King v. Boston & Ors.,(’ M.L.A. would be  a public servant. In Boston’s case, the allegation was that  Harrison and Mitchel more paid to defendant Boston in his  official capacity  as a  Member of  the  Legislative Assembly  of  New  South  Wales  and  the  latter  corruptly accepted in  that capacity as inducement to him in violation of his official duty to use his position as such member; (a) to secure  the acquisition by the Government of the State of New South  Wales of certain estates and the payment for such estates out of the public funds of the State; and (b) to put pressure upon  the Minister  for Lands and other officers of the  Crown   to  acquire  and  pay  for  such  estates.  The contention was  that the  agreement between  the  defendants might have  been to pay money to Boston to induce him to use his position  exclusively outside   Parliament,  and not  by vote or  speech in the Assembly, and that the transaction in connection with  which he  was to  use his  position to  put pressure  on   the  Minister  might  consistently  with  the information, be one which would never come before Parliament and which,  in his  opinion and  in the opinion of those who paid him,  was highly  beneficial to the State; that such an agreement would  not amount  to a criminal offence, and that consequently  the   information  is   bad.  Negativing  this contention, it  was held  that it  is settled  law  that  an agreement or combination to do an act which tends to produce a public  mischief amounts  to a criminal conspiracy. It was further 549 held by  the majority  that the payment of money to, and the receipt of money by, a member of Parliament to induce him to use  his   official  position,  whether  inside  or  outside

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 48  

Parliament,  for  the  purpose  of  influencing  or  putting pressure on  a Minister  or other  officer of  the Crown  to enter into  or carry  out a transaction involving payment of money out  of the  public funds,  are acts  tending  to  the public mischief,  and an agreement or combination to do such acts amounts  to a  criminal offence.  The question has been examined in  the light  of the settled law that an agreement or combination  to do an act which tends to produce a public mischief amounts  to a criminal conspiracy. Isaacs and Rich, JJ posited the question: how far a member of the Legislative Assembly of New South. Wales can, without incurring any real personal   responsibility-that   is-other   than   political rejection,  make   his  public   position  the   subject  of profitable traffic  by engaging in departmental intervention on behalf  of individuals  in return  for private  pecuniary consideration to  himself ? The concurring judgment examined the general  position of  a member  of Parliament  and  then proceeded to  examine the special provisions of the relevant clause. On  this point it was concluded that the fundamental obligation, which  is the  key to  this case, is the duty to serve and,  in serving,  to act  with fidelity  and  with  a simplemindedness for  the welfare  of the  community. It was further observed  that a member of Parliament is, therefore, in the highest sense, a servant of the State; his duties are those appertaining  to the  position he fills, a position of no transient  or temporary  existence, a  position forming a recognized  place   in  the   constitutional  machinery   of government. It was also held that he holds an office. In the third concurring  judgment of  Higgins, J,  while  conceding that the  member of  Parliament has  to discharge  a duty in which  the   public  is   interested,  but   after-examining provisions of  the public  Service Acts, it Was held that he is not public officer within the meaning of that Act because he is  not required  to obey  the commands of the King or of the departmental  heads. It  was however concluded that as a member of  Parliament, he holds a fiduciary relation towards the public,  and that  is enough.  The minority  judgment of Gavan Duffy  and  Starke,  JJ.  clearly  proceeds  on  their holding that  a member  of Legislative Assembly of New South Wales is  not the  holder of  a  public  office  within  the meaning of  the common  law and even if he could be regarded as the  holder of  such  an  office,  the  acts  charged  as intended  to  be  done  by  the  defendant  Boston,  however improper they  may be,  would not  be  malversation  in  his office or acts done in his office or acts done in his office unless they  were done  in the  discharge of his legislative functions. As we are concerned with a legislative enactment- Sec. 21(12)(a), this decision based on the 550 concept of common law and some of the statutes as prevailing in Australia  would not be very helpful. It may be mentioned while comparing  M.L.A. and  M.P. in India with M.P. in U.K. that the  M.P. in  U.K. is neither covered by the Prevention of Corruption  Act, 1906  nor the  Prevention of  Corruption Act, 1916.  It may  also be mentioned that The Public Bodies Corrupt Practices Act, 1889 does not cover M.P. in U.K. ’The acceptance by  any member of either House of Parliament of a bribe to  influence him  in his conduct as such member or of any fees,  compensation or  reward in  connection  with  the promotion of,  or opposition to any bill, resolution, matter or thing  submitted or intended to be submitted to the House or any  committee thereof  is  a  breach  of  privilege.’(’) Attempts to bring M. P. in U.K. either  under the provisions of the  Prevention of  Corruption Act  or the  public Bodies Corrupt Practices  Act have  not met with success. Even such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 48  

modicum of  decency in  public life  as disclosing relevant, pecuniary interest  or benefit  of whatever  nature  whether direct or  indirect that he may have had or may be expecting to have  while participating  in a  debate or  proceeding in House by  M.P. in  U.K. was  stoutly resisted  in 1974.  But Paulson  Affair   stirred  many   and  Royal  Commission  on Corruption in  Public Life headed by Lord Justice Salmon was set up.  The Commission  inter alia recommended in 1976 that M.Ps. should  be brought  within the scope of the corruption laws  regarding   their  actions   inside  as  well  outside Parliament. No  follow up legislative action appears to have been taken since then.      If M.L.A.  is not  in the  pay of the Government in the sense of  Executive government or is not remunerated by fees for  performance   of  any  public  duty  by  the  Executive Government, certainly  he would   not be comprehended in the expression  ’public  servant’  within  the  meaning  of  the expression in  cl. (12) (a). He is thus not a public servant within the  meaning of  the expression  in cl.(12) (a). This conclusion reinforces  the earlier  conclusion reached by us after examining the historical evolution of cl. (12) (a).      Mr. Singhvi, however, strenuously contended that M.L.A. would be  comprehended in  cl. (3) or cl. (7) of Sec. 21 IPC to be  a public  servant He  went so far as to suggest that, his emphasis  would have been more  on cl. (3) comparatively and not  on cl. (12) (a). Therefore, it may now. be examined whether M.L.A.  is comprehended either in cl. (3) or cl. (7) of Sec. 21 IPC. 551      Re (e):  Cl.(3) of  Sec. 21,  as it  at present stands, takes within  its purview  every Judge  including any person empowered by  law to  discharge whether  by himself  or as a member of  any body  of persons, any adjudicatory functions. Prior to  its amendment  by Act  40 of 1964 the cl. (3) read simply ’Every  judge’. Cl. (3) was amended to read, as it at present stands,  pursuant  to  the  recommendations  of  the Santhanam Committee.  In Para  7.6 of  the  Report,  it  was recommended that  ’a’ further  category should  be added  to include all persons discharging adjudicatory functions under any Union  of State  Law for  the time being in force’. With this end  in view,  the Committee  recommended that  cl. (3) should read:  ’Every Judge  including any  person  entrusted with adjudicatory  functions in the course of enforcement of any law for the time being in force’. At the Bill stage, the clause  was  recast  so  as  to  give  full  effect  to  the recommendation of  the Committee  and this  equally  becomes clear from the Statement of objects and Reasons accompanying Bill No.  67 of  1964 which  when adopted  became Act  40 of 1964. In  para 2 (a) of the Statement of objects and Reasons it is  stated that ’the definition of public servant in Sec. 21 of  the Indian Penal Code is proposed to be amended so as to bring within its purview certain additional categories of persons such  as persons  performing adjudicatory  functions under any  law, liquidators,  receivers, commissioners etc.’ If we  recall the  earlier discussion  about the  history of evolution  of   cl,  (12)   (a)  and  the  entire  range  of recommendation  of   the  Santhanem  Committee,  it  can  be confidently said the M.L.A. was never intended to be brought within the  conspectus of clauses of Sec. 21 so as to clothe him with the status of a public servant.      Independent of  this historical evolution and focussing attention on the language of cl. (3) it is difficult to hold that M.L.A.  as a  member of  a body  of persons such as the Legislative Assembly  performs  any  adjudicatory  functions empowered by  law  to  discharge  that  function.  In  fact,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 48  

Santhanam Committee contemplated covering such officers like liquidators, receivers,  commissioners etc.  each of whom is empowered  by   different   statutes   to   discharge   such adjudicatory functions as prescribed by the concerned law.      It was  however, contended  that expression ’Judge’ has been defined in Sec. 19 IPC to denote ’not only every person who is  officially designated  as a  Judge, but  also  every person who  is empowered  by  law  to  give,  in  any  legal proceeding, civil  or criminal,  a definitive judgment, or a judgment  which,   if  not   appealed  against,   would   be definitive, or  a  judgment,  if  confirmed  by  some  other authority, would be definitive, 552 or who  is one of a body of persons which body of persons is empowered by law to give such a judgment and in cl. (3) this definition cannot  be substituted because it is an inclusive definition  which   means  it  is  extensive  in  character. Accepting the position that inclusive definition extends the specific meaning  of  the  expression  which  it  would  not otherwise bear,  it is  necessary to  determine whether this extension of  the expression  ’Judge’ is so wide as to cover within its  umbrella M.L.A.  on the ground that while voting upon a motion for breach of privilege or for contempt of the House, he  is discharging adjudicatory functions and that he is so empowered by law to do so. When with the permission of the Speaker,  a motion  for breach  of privilege is moved in the Legislative  Assembly or  a motion for taking action for contempt of the House is moved, undoubtedly, every member of the House has a right to participate and after the motion is debated upon, the majority vote is recorded as a decision of the House.  Does that  make M.L.A. a person as a member of a body persons  who  discharges  adjudicatory  functions?  The definition of expression ’Judge’ comprehends adjudication in any legal  proceeding, civil  or criminal  and in  which the person  as  a  Judge  is  empowered  to  give  a  definitive judgment. It  is difficult to accept the submission that the proceedings before the House either upon a motion for breach of  privilege  or  for  contempt  is  a  civil  or  criminal proceeding, as  these terms ordinarily connote. A motion for breach of  privilege or for contempt of the House is brought before the  House when  the mover  feels  that  the  powers, privileges and  immunities of  the House have been violated. The House  has the  power to  punish for  contempt’ and  the penal jurisdiction of the House is not confined to their own Members nor  to offences  committed in  their presence,  but extends to all contempts of the Houses, whether committed by Members or  by persons  who are not Members, irrespective of whether the  offence is committed within the House or beyond its walls’.  (See Earskine May Parliamentary Practice 20 ed. p. 122).  This power  of commitment  is truly described as a key-stone of Parliamentary Practice. It was pointed out that ’the origin  of the power which is judicial in its nature is to  be   found  naturally  in  the  medieval  conception  of Parliament as primarily a court of justice-the High Court of Parliament’ (ibid page 124). It is however, difficult to say that a  State Legislature functioning under our Constitution can be  described as  High Court of Legislative Assembly. In blindly   tailoring    our   Constitutional   Law   to   the Parliamentary Practice  in U.K.,  one is apt to overlook the obvious fact  that  House  of  Lords  always  possessed  the judicial power  as any  Court of  Westminster Hall. (ibid p. 124). In this connection in Special 553 Ref. No.  1 of 1964(1) it was clearly stated that the result of the provision contained in the latter part of Art. 194(3)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 48  

was not  intended to  be confer on the State Legislatures in India the  status of  a superior  Court of  Record.  It  was further observed  that the  House and indeed all Legislative Assemblies in  India never discharged any judicial functions and their historical and constitutional back ground does not support the  claim that  they can  be regarded  as Court  of Record in any sense Undoubtedly, the Legislative Assembly in view of  the provisions  contained in  Art. 194(3)  has  the power to  inflict punishment for breach of privilege and for contempt of the House And when a motion is moved complaining breach of privilege or for taking action for the contempt of the House,  the members  would  participate  in  the  debate analyse evidence  and absence  thereof  in  support  of  the motion and  against the  motion and  ultimately decide  as a body by  a democratic process whether the motion is affirmed or rejected.  The question  is whether  this process  can be styled as  an adjudicatory  process discharged  by M.L.A. as empowered by  law. If  the expression  ’law’ were to include the Constitution,  certainly this power is enjoyed by M.L.A. but  expression   ’law’  ordinarily  does  not  include  the Constitution. Art  13(1) of  the Constitution  provides that all laws  in force  in the  territory of  India  immediately before the  commencement of  the Constitution  in so  far as they are  consistent with the provision of Part III shall to the extent  of inconsistency be void. Sub-Art. (2) imposes a restriction on  the legislative  power of  the State to make any law which takes away or abridges the rights conferred by Part III  and any  law made  in contravention of sub-Art (2) shall  to   the  extents   of  the  contravention,  be  void ’Expression ’law’  as used  here would  be  law  other  than Constitution. in  other words law enacted in exercise of the legislative power.  The majority  view in  I.C. Golaknath v. State of  Punjab(1) that  amendment of  the Constitution  is part of  the legislative  process does  not survive as valid any longer because it was admitted that Constitution (Twenty Fourth) Amendment  Act, 1971  in so  far as it transfers the power to  amend the Constitution from the residuary entry or Article 248  of the  Constitution to  Article 368  is valid. After so saying the trend of discussion in various judgments in H.H.  Keshvnand Bharathi Sripadanaga galavaru v. State of Kerala and  another(2) shows  that when  the power amend the Constitution  is   exercise  by   Parliament  it   exercises Constituent power and this is independent of the ordinary 554 legislative process.  And this  approach is  borne out  by a reference to  the definition of expression Indian law in the General Clauses Act which does not include the Constitution. A passing  reference may  also be  made to  the form of oath prescribed for a Judge of the Supreme Court and the Judge of the High  Court in the Third Schedule which separately refer to the Constitution and the laws.      Participation in  a debate  on a  motion of  breach  of privilege or for taking action for contempt of the House and voting thereon  is a  constitutional function  discharged by the members  and therefore,  it cannot  be  said  that  such adjudicatory function  if it  can be  so styled, constitutes adjudicatory function  undertaken by  M.L.A. as empowered by law. Viewed  from this  angle it is not necessary to examine the contention  that adjudication  and a  resultant judgment presupposes a  lis between  persons other  than adjudicator, and M.L.A.  has no  lis before him as a body of persons when passing upon the motion for contempt or breach of privilege. Accordingly the  submission that  the  accused  would  be  a public servant  within the  meaning of the expression in cl. (3) of Sec. 21 IPC must be rejected.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 48  

    The last  limb of  the submission was that at any rate, the accused  would be a public servant within the meaning of cl. (7)  of Sec. 21 IPC, which takes within its ambit ’every person who  holds any  office  by  virtue  of  which  he  is empowered to  place or keep any person in confinement’. This limb of  the submission  was not placed for consideration of the learned  trial Judge.  And it has merely to be stated to be rejected.  We, however, did not want to reject it on this narrow ground.  Expanding this contention, it was urged that M.L.A. is  empowered to adjudge a person guilty of breach of privilege or  contempt of the House and when prison sentence is imposed  to keep  him in  confinement. Assuming  for  the purpose of  this argument that M.L.A. holds an office, is he a  person   empowered  to   place  or  keep  any  person  in confinement. Power  to impose  punishment is  independent of the power  to keep  a person  in confinement.  First is  the power to  impose a  prison sentence. but second is the power flowing from  the execution of the sentence to place or keep any person  in confinement  meaning  thereby,  there  is  an execution of  warrant Persons  whose duty it is to deprive a person directed  to be  imprisoned to  deprive  him  of  his liberty  to  remain  free  and  to  keep  or  place  him  in confinement  in  due  execution  of  the  warrant  would  be comprehended in  cl. (3).  It is  difficult  to  accept  the submission that  M.L.As. as  a body  can keep  or place  any person in  confinement. Reference was, however, made to some of the passages 555 in Parliamentary Practice by Earskine May, 20th Edn. as also to Practice  and Procedure  of Parliament,  Third Edition by Kaul and  Shakdher, p. 208. The authors observed at page 208 that ’each  House of the Legislature of State, has the power to secure  the attendance of persons on matters of privilege and to  punish for  break of  privilege or  contempt of  the House and commit the offender to custody or prison’. At page 212, it  is observed  that ’each  House  has  the  power  to enforce its  orders including  the power for its officers to break open  the doors  of a  house for  that  purpose,  when necessary, and  execute  its  warrants  in  connection  with contempt proceedings’. We fail to see how these observations assist us  in understanding  the  expression  ’empowered  to place or  keep any  person in  confinement.’ Broadly stated, the expression  comprehends Police and Prison Authorities or those under  an obligation  by law or by virtue of office to take into  custody and  keep in confinement any person. In M P. Dwivedi’s  case, this  Court observed  that  Seventh  and Eighth clauses  of Sec.  21 deal  with persons  who  perform mainly policing  duties. To say that M.L.A. by virtue of his office is  performing policing  or prison  officers’  duties would be  apart form doing violence to language lowering him in status.  Additionally, cl.  (7) does  not  speak  of  any adjudicatory function.  It appears  to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison  sentence, and  a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person  in confinement.  The decisions in Homi D. Mistry v. Shree  Nafisul Hussan  & Ors.(1).  Harendra Nath Barua v. Dev Kanta  Barua &  Ors (2)  and Edward  Kelley  v.  William Carson, John  Kent &  Ors.(2) hardly  shed any light on this aspect. Therefore,  the  submission  that  M.L.A.  would  be comprehended in  cl. (7)  of Sec.  21 so  as to  be a public servant must be rejected.      Having  meticulously   examined  the   submission  from diverse angles as presented to us, it appears that M.L.A. is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 48  

not a public servant within the meaning of the expression in cl. (12)(a), cl. (3) and cl.(7) of Sec. 21 IPC.      Re: (f)  & (g):  The learned  Judge after  recording  a finding  that   M.L.A.  is   a  public  servant  within  the comprehension of  cl.  (12)(a)  and  further  recording  the finding that as on the date on which the Court 556 was invited  to take  cognizance, the  accused  was  thus  a public servant  proceeded to  examine whether sanction under Sec. 6  of  the  1947  Act  is  a  pre-requisite  to  taking cognizance of  offences enumerated in Sec. 6 alleged to have been committed  by him.  He reached  the conclusion  that  a sanction is  necessary before  cognizance can be taken. As a corollary he proceeded to investigate and identify, which is the sanctioning  authority who would be able to give a valid sanction as  required by  Sec; 6  for the prosecution of the accused in  his capacity  as M.L.A.?  We have  expressed our conclusion that  where offences  as set  out in  Sec. 6  are alleged to have been committed by a public servant, sanction of only  that authority  would be  necessary  who  would  be entitled to  remove him from that office which is alleged to have been  misused or  abused for  corrupt motives.  If  the accused has  ceased to  hold that  office by  the date,  the court is  called upon  to take  cognizance of  the  offences alleged to  have been  committed by  such public servant, no sanction under  Sec. 6  would be  necessary despite the fact that he may be holding any other office on the relevant date which may make him a public servant as understood in Sec 21, if there  is no  allegation that  office has  been abused or misused  for   corrupt  motives.   The  allegations  in  the complaint are  all to the effect that the accused misused or abused his  office as Chief Minister for corrupt motives. By the time  the Court  was called  upon to  take cognizance of those offences, the accused had ceased to hold the office of Chief Minister. The sanction to prosecute him was granted by the Governor  of Maharashtra  but this  aspect  we  consider irrelevant for  concluding that no sanction was necessary to prosecute him  under Sec.  6 on  the date on which the court took  cognizance  of  the  offences  alleged  to  have  been committed by  the accused.  Assuming  that  as  M.L.A.  that aspect  becomes   immaterial.  Further   Sec.  6  postulates existence of  a valid  sanction for  prosecution of a public servant for  offences punishable  under Secs.  161, 164, 165 IPC and  Sec. 5 of the 1947 Act, if they are alleged to have been committed  by a  public servant. In view of our further finding that  M.L.A. is  not a  public  servant  within  the meaning of  the expression  in Sec.  21 IPC  no sanction  is necessary to  prosecute him for the offences alleged to have been committed by him.      In view  of the  conclusions reached by us, we consider it unnecessary  to ascertain  which would  be the  authority competent to  sanction prosecution of M.L.A. as envisaged by Sec.  6   thought  it   must  be   frankly  confessed   that considerable time was spent in the deliberations 557 in search  of competent  sanctioning  authority.  The  vital question has  become one of academic interest. We propose to adhere to  the accumulated  wisdom which  has ripened into a settled practice  of  this  Court  not  to  decide  academic questions. The question is left open.      Before we  conclude let it be clarified that more often in the  course of  this judgment,  we have  used  the  words ‘office of  M.L.A.’ It  was debated whether the M.L.A. holds seat or  office? Our  use of  the expression ‘office’ should not be  construed to  mean that  we have  accepted that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 48  

position of  M.L.A. can  be aptly  described. as one holding public office or for that matter.      To sum  up, the  learned special  Judge was  clearly in error in  holding that M.L.A. is a public servant within the meaning of the expression in Sec. 12(a) and further erred in holding that  a sanction  of  the  Legislative  Assembly  of Maharashtra or  majority of  the  members  was  a  condition precedent to  taking cognizance of offences committed by the accused. For  the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set aside.      This appeal  accordingly succeeds  and is  allowed. The order and  decision of  the learned  Special Judge Shri R.B. Sule dated. July 25, 1983 discharging the accused in Special Case No.  24 of  1982 and Special Case No.3/83 is hereby set aside and  the trial  shall proceed  further from  the stage where the accused was discharged.      The accused  was the Chief Minister of a premier State- the State of Maharashtra. By a prosecution launched as early as on  September 11,  1981, his character and integrity came under a  cloud. Nearly  2/1/2 years  have rolled  by and the case has  not moved an inch further. An expeditious trial is primarily in  the interest  of the  accused and a mandate of Art. 21.  Expeditious disposal  of a criminal case is in the interest of  both, the  prosecution and  the accused. There, fore, Special  Case No. 24 of 1982 and Special Case. No 3/83 pending in  the Court  of Special Judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. On being  so assigned,  the learned  Judge  may  proceed  to expeditiously dispose of the cases Preferably by holding the trial from day to day. H.S.K.                                        Appeal allowed 558