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CASE NO.: Appeal (crl.)  982-983 of 2003

PETITIONER: Dilawar Singh                                    

RESPONDENT: Parvinder Singh @ Iqbal Singh & Anr.     

DATE OF JUDGMENT: 08/11/2005

BENCH: H.K. Sema & G.P. Mathur

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

1.      These appeals, by special leave, have been preferred against the  judgment and order dated 3.7.2002 of the High Court of Punjab and  Haryana by which Criminal Revision Petition No.553 of 2002 filed by the  respondent Parvinder Singh @ Iqbal Singh was allowed and the appellant  was summoned for facing prosecution under Section 13(2) of Prevention  of Corruption Act, 1988.  The appellant filed an application under Section  482 Cr.P.C. for recall of the order dated 3.7.2002 on the ground that he  was not served with the notice of the revision and the same was allowed  ex-parte against him, but the application was dismissed by the order dated  4.3.2003 with the observation that there was no provision for review under  the Code of Criminal Procedure.   The appellant has laid challenge to the  aforesaid order as well.  

2.      It is necessary to mention the basic facts giving rise to the present  appeals.  On the complaint made by the wife, a case was registered against  Parvinder Singh @ Iqbal Singh under Section 406/498-A IPC.   On  27.1.2000 Parvinder Singh @ Iqbal Singh gave a complaint to the SSP  Barnala alleging that on 23.1.2000, Jasbir Singh, ASI and a Home Guard   came to his house on a scooter and forcibly took him to the Police Station  Barnala.  He was beaten and tortured and was subjected to third degree  methods.   Some of his relatives, namely, Jarnail Singh, Sukhdev Singh,  Sadhu Singh Grewal and Sukhdev Singh Virk came to the police station  and requested the police personnel not to beat or torture him. It was further  alleged in the complaint that Jasbir Singh, ASI, told them that they should  talk to Dilawar Singh, S.H.O., who was sitting there on a chair.   Dilawar  Singh then demanded an amount of Rs.20,000/- for releasing Parvinder  Singh.   His relations then brought the amount, out of which Rs.15,000/-  was offered to Dilawar Singh but he said that the money may be handed  over to ASI Jasbir Singh.  The amount of Rs.15,000/- was then given to  ASI Jasbir Singh, who kept the same in the pocket of his coat.   Parvinder  Singh was medically examined on 28.1.2000 and a case was registered  under Section 13(2) Prevention of Corruption Act, 1988 (hereinafter  referred to as "the Act").  After investigation, charge-sheet was submitted  only against ASI Jasbir Singh.  A closure report was submitted against  Dilawar Singh S.H.O. as in the opinion of the investigating officer he had  not committed any offence.  It may be mentioned here that for prosecution  of ASI Jasbir Singh, necessary sanction had been obtained from the  competent authority under Section 19 of the Act.   After the statement of  the complainant Parvinder Singh had been recorded, he moved an  application under Section 319 Cr.P.C. for summoning Dilawar Singh,  S.H.O. as a co-accused in the case.  After hearing the counsel for the  parties, the learned Special Judge dismissed the application by the order  dated 7.1.2002.  Parvinder Singh filed a revision petition against the

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aforesaid order which has been allowed by the High Court by the  impugned order dated 3.7.2002 and a direction has been issued to summon  Dilawar Singh and try him in accordance with law.

3.      Learned counsel for the appellant had submitted that no sanction  had been granted under Section 19 of Prevention of Corruption Act, 1988,   for prosecution of the appellant under Section 13(2) of the said Act and in  absence of sanction, the appellant could not be summoned to face the trial.    Learned counsel for the respondent Parvinder Singh has submitted that the  language used in the opening part of the sub-section (1) of Section 19 is  that "No Court shall take cognizance of an offence punishable under  Sections 7, 10, 11 13 ........." and in the present case cognizance of the  offence had already been taken by the Special Judge as against ASI Jasbir  Singh and in these circumstances, no fresh sanction was required as  against the appellant Dilawar Singh.  Learned counsel has further  submitted that a Court takes cognizance of an offence and not that of an  offender and once cognizance has been validly taken as against ASI Jasbir  Singh, for whose prosecution sanction had been granted, there is no  impediment in proceeding against the appellant Dilawar Singh as well.  In  support of the submission that cognizance is taken of an offence and not  that of an offender, reliance is placed on certain observations made in  Raghubans Dubey v. State of Bihar AIR 1967 SC 1167, wherein it was  held that once cognizance has been taken by the Magistrate, he takes  cognizance of an offence and not the offenders; once he takes cognizance  of an offence it is his duty to find out who the offenders really are and  once he comes to the conclusion that apart from the persons sent up by the  police some other persons are involved, it is his duty to proceed against  those persons.   Learned counsel has also submitted that the complainant  respondent had moved an application for summoning the appellant under  Section 319 Cr.P.C., which gives wide power to the Court to summon an  accused and to proceed against him if it appears from the evidence that any  person not being an accused has committed any offence for which such  person could be tried together with the accused.    

4.       In our opinion, the contention raised by the learned counsel for the  appellant is well founded.  Sub-section (1) of Section 19 of the Act, which  is relevant for the controversy in dispute, reads as under : "19. Previous sanction necessary for prosecution.\026(1)  No  court shall take cognizance of an offence punishable under  sections 7, 10, 11, 13 and 15 alleged to have been committed  by a public servant, except with the previous sanction, -  

(a)     in the case of a person who is employed in connection  with the affairs of the Union and is not removable from  his office save by or with the sanction of the Central  Government, of that Government;

(b)     in the case of a person who is employed in connection  with the affairs of a State and is not removable from his  office save by or with sanction of the State  Government, of that Government;

(c)     in the case of any other person, of the authority  competent to remove him from his office."

This section creates a complete bar on the power of the Court to  take cognizance of an offence punishable under Sections 7, 10, 11, 13 and  15 alleged to have been committed by a public servant, except with the  previous sanction of the competent authority enumerated in clauses (a) to  (c) of this sub-section.   If the sub-section is read as a whole, it will clearly  show that the sanction for prosecution has to be granted with respect to a  specific accused and only after sanction has been granted that the Court  gets the competence to take cognizance of an offence punishable under  Sections 7, 10, 11, 13 and 15 alleged to have been committed by such  public servant.  It is not possible to read the section in the manner

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suggested by learned counsel for the respondent that if sanction for  prosecution has been granted qua one accused, any other public servant for  whose prosecution no sanction has been granted, can also be summoned to  face prosecution.   

5.      In State through CBI v. Raj Kumar Jain  (1998) 6 SCC 551, the  Court was examining the scope of Section 6(1) Prevention of Corruption  Act, 1947, which is almost similar to sub-section (1) of Section 19 of the  Act.  After quoting the provisions of Section 6(1) Prevention of Corruption  Act, 1947, it was held as under in para 5 of the report : "5.     From a plain reading of the above section it is  evidently clear that a Court cannot take cognizance of the  offences mentioned therein without sanction of the  appropriate authority.  In enacting the above section, the  legislature thought of providing a reasonable protection to  public servants in the discharge of their official functions so  that they may perform their duties and obligations  undeterred by vexatious and unnecessary prosecutions."

6.      In Jaswant Singh v. State of Punjab AIR 1958 SC 124, sanction had  been granted for prosecution of the accused for an offence under Section  5(1)(d) of the Prevention of Corruption Act, 1947, but no sanction had  been granted for his prosecution under Section 5(1)(a) of the said Act.  It  was held that no cognizance could be taken for prosecution of the accused  under Section 5(1)(a) of the Prevention of Corruption Act, 1947, as no  sanction had been granted with regard to the said offence, but the accused  could be tried under Section 5(1)(d) of the said Act as there was a valid  sanction for prosecution under the aforesaid provision.   

7.      In Crl. Appeal No.215 of 2004 (State of Goa v. Babu Thomas)  decided by this Bench on 29.9.2005, it was held that in absence of a valid  sanction on the date when the Special Judge took cognizance of the  offence, the taking of the cognizance was without jurisdiction and wholly  invalid.   This being the settled position of law, the impugned order of the  High Court directing summoning of the appellant and proceeding against  him along with Jasbir Singh ASI is clearly erroneous in law.

8.      The contention raised by learned counsel for the respondent that a  Court takes cognizance of an offence and not of an offender holds good  when a Magistrate takes cognizance of an offence under Section 190  Cr.P.C.  The observations made by this Court in Raghubans Dubey v.  State of Bihar (supra) were also made in that context.   The Prevention of  Corruption Act is a special statute and as the preamble shows this Act has  been enacted to consolidate and amend the law relating to the prevention  of corruption and for matters connected therewith.  Here, the principle  expressed in the maxim Generalia specialibus non derogant would apply  which means that if a special provision has been made on a certain matter,  that matter is excluded from the general provisions.   (See Venkateshwar  Rao v. Govt. of Andhra Pradesh AIR 1966 SC 828, State of Bihar v.  Yogendra Singh AIR 1982 SC 882 and Maharashtra State Board of  Secondary Education v. Paritosh Bhupesh Kumar Sheth AIR 1984 SC  1543).   Therefore, the provisions of Section 19 of the Act will have an  overriding effect over the general provisions contained in Section 190 or  319 Cr.P.C.  A Special Judge while trying an offence under the Prevention  of Corruption Act, 1988, cannot summon another person and proceed  against him in the purported exercise of power under Section 319 Cr.P.C.  if no sanction has been granted by the appropriate authority for  prosecution of such a person as the existence of a sanction is sine qua non  for taking cognizance of the offence qua that person.    

9.      For the reasons mentioned above, we are of the opinion that the  impugned order of the High Court directing summoning of the appellant  Dilawar Singh is wholly illegal and cannot be sustained.   The appeals are  accordingly allowed.  The impugned order dated 3.7.2002 of the High  Court is set aside and the order dated 7.1.2002 of the Special Judge,

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Barnala, is restored.