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PETITIONER: HABIBULLA KHAN

       Vs.

RESPONDENT: STATE OF ORISSA & ANR.

DATE OF JUDGMENT02/02/1995

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. RAY, G.N. (J)

CITATION:  1995 AIR 1123            1995 SCC  (2) 437  JT 1995 (2)     1        1995 SCALE  (1)419

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted. 2.   A  common  question of law, viz., whether  sanction  is required  for launching a criminal prosecution  against  the appellants, has been raised in these appeals. 3.The  Orissa Special Courts Act,1990 [hereinafter  referred to as the "Special  Courts  Act"] which came into  force  on 27th July, 1992 after receiving the assent of the President, provides  for constitution of special courts for the  speedy trial   of   certain  classes  of  offences  and   for   the confiscation  of  the property involved  in  such  offences. Section  2  [d]  of that Act defines "offence"  to  mean  an offence of criminal misconduct within the meaning of  clause (e)  of sub-section [1] of Section 13 of the  Prevention  of Corruption Act, 1988 [hereinafter referred to as the "Act"]. Section  5 [1] of the Special Courts Act, as amended by  the Amendment of 1993 reads as follows:               "5  [1].   If the State Government is  of  the               opinion that there is prima facie evidence  of               the  commission of an offence alleged to  have               been combined by a person who held high public               or  political office in the State  of  Orissa,               the State Government shall make a  declaration               to that effect in every case in which it is of               the aforesaid opinion". 4.   Rule  2 (1) [f] (i) of the Orissa Special Courts  Rules [hereinafter referred to as the "Rules"] reads as follows:               "2  (1} [f].  "Person holding  high  political               office" includes-               (i)   members of the Council of Ministers  and               the Chief Minister". 5.Clause [e] of sub-section [1] of Section   13  of the  Act defines "offence of criminal misconduct" as follows:               "13.  Criminal misconduct by a public servant.               - [1] A public servant is said to               commit the offence of criminal misconduct -

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             x     x        x        x        x x               (e)   if  he or any person on his behalf,  is.               in    possession  or has, at any  time  during               the  period of his office, been in  possession               for   which   the   public   servant    cannot               satisfactorily account, of pecuniary resources               or  property  disproportionate  to  his  known               sources of income.               Explanation.  -  For  the  purposes  of   this               section,  "known  sources  of  income"   means               income  received  from any lawful  source  and               such receipt has been intimated in  accordance               with  the  provisions  of any  law,  rules  or               orders  for  the time being  applicable  to  a               public servant. 6.   It  is  not  disputed  that  all  the  appellants  were Ministers  in  the Council of Ministers of  the  respondent- State of Orissa during the period in which they were alleged to  have been found in possession of pecuniary resources  or property disproportionate to their known sources of  income. Subsequently, they ceased to be Ministers due to the  change of Government and thereafter were elected as the Members  of the  Legislative  Assembly of the State ["MLA"  for  short]. They continued to be such Members till the prosecutions were launched against them for the said criminal misconduct under Section 13 [1] (e) of the Act. 7.   Shri  Habibulla  Khan,  the  appellant  in  the  appeal arising  out  of SLP No. 1563 of 1993 filed  an  application before  the Special Court on 25th July, 1991  for  recalling the  orders of the cognisance of the offence on  the  ground that at the time of taking the cognisance, he was an MLA and as such a public servant within the meaning of Section 2 [c] (viii) of the Act and, therefore, he could not be tried  for the offence under Section 13 [1] (e) of the Act without  the sanction  of the Governor of the State under Section  19  of the Act who according to him was competent to remove an  MLA under  Article  192 of the Constitution.  On  18th  January, 1991,  the Special Court dismissed the  application  holding that  an  MLA  was  not a public  servant  and  further  the Governor  was  not competent to remove an MLA and  hence  no sanction was required under the said provision.  This  order was  assailed by the appellant before the High  Court  under Section  482  of  the Code of  Criminal  Procedure  on  22nd January,  1993.  The learned Single Judge of the High  Court referred  the matter to Division Bench which  dismissed  the matter  by  its impugned judgment of 5th May,  1993  holding that  an  MLA  is a public servant  within  the  meaning  of Section 2 [c] (viii) of the Act; but the power of  "removal" mentioned in Section 19 of the Act partakes the character of punishment and the Governor has no power of removal of an WA under Article 192 of the Constitution by way of  punishment. There was a distinction between the concept of "removal"  as used in Section 19 of the Act and that of "disqualification" as  used  in  Article 192 of the  Constitution.   Since  the Governor  was  not  the  authority to  remove  an  &MA,  the sanction was not necessary under Section 19  of the Act. 8.   The appellant, Nagarjuna Pradhan in appeal arising  out of  SLP No.2261 of 1994 raised similar plea on 17th  August, 1993  but  a long time after the  prosecution  was  launched against him and 31 prosecution witnesses were examined. 9.   Similarly, the appellant, Rama 3 Chandra  Ulaka in appeals arising out of to SLP  Nos.2259-60 of   1994  raised  the  same  plea  belatedly  in  the   two prosecutions  launched  against him after 16  and  18  pros-

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ecution witnesses respectively were examined in those cases. 10.  The  appellants are being prosecuted for  the  criminal misconduct  which they are alleged to have committed  during the  period they were holding high political  office  within the meaning of Section 5 [1] of the Special Courts Act  read with  Rule 2 (1) [f] (1) of the Rules made under  that  Act. The  Special  Courts  Act  incorporates  the  definition  of "criminal  misconduct"  given in section 13 [1] (e)  of  the Act.  The procedure for prosecution to be followed, however, is as laid down under the Special Courts Act.  All that  the Special  Courts Act requires for launching a criminal  pros- ecution  against a person holding high political  office  is that  the State Government should make a  declaration  under Section 5 [1] of that Act that there is prima facie evidence of  the commission of an offence by a person who  held  high public  or political office in the State.  Hence the  provi- sions of Section 19 of the Act do not come into the  picture in  the  present case.  That being so, no  sanction  of  the Governor  or any other authority is necessary for  launching the criminal prosecutions in question. 11.  Assuming,  however, that the procedure to  be  followed before launching criminal prosecution is that under the Act, the  admitted  facts  are  that  the  appellants  are  being prosecuted for the misconduct alleged to have been committed by them during their tenure as the Members of the Council of Ministers and not in their capacity as the MLAs.  Hence  the provisions of Section 19 of the Act are inapplicable to  the facts  of  the present case as held in R.S.  Nayak  v.  A.R. Antulay [(1984) 2 SCR 495]. 12.  The second question is whether the appellants could  be prosecuted  for the offence which they are alleged  to  have committed during their tenure as ministers after they ceased to  be the ministers.  This question has also been  answered by two decisions of this Court.  In S.A. Venkataraman v. The State [(1958) SCR 1040], it is held while construing similar provision of Section 6 of the predecessor of the present Act which provision was similar to the provisions of Section  19 of  the present Act that no sanction was necessary  for  the prosecution  of the appellant in that case, as he was not  a public  servant at the time of the taking of  cognizance  of the offence.  The Court there observed as follows:               "In construing the provisions of a statute  it               is  essential  for a Court, in the  first  in-               stance, to give effect to the natural  meaning               of the words used therein, if those words  are               clear  enough.  It is only in the case of  any               ambiguity   that  a  Court  is   entitled   to               ascertain  the intention of  the  legislature.               Where a general power to take cognizance of an               offence is vested in a Court, any  prohibition               to   the  exercise  of  that  power,  by   any               provision  of  law, must be  confined  to  the               terms  of the prohibition.  The words  in  S.6               (1)  of the Act are clear enough and  must  be               given effect to.  The more important words ’in               cl.  (c)  of s. 6 (1) are  "of  the  authority               competent  to remove him from his office".   A               public  servant who has ceased to be a  public               servant  is  not a person removable  from  any               office by competent authority.  The conclusion               is  inevitable  that at the time  a  Court  is               asked  to  take cognizance not only  must  the               offence have               been  committed  by a public servant  but  the               person accused must still be a public  servant

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             removable  from  his  office  by  a  competent               authority  before  the provisions of  s.6  can               apply." 13.Similarly, a Constitution Bench in Veeraswami v. Union of India  and others [(1991) 3 SCC 655], while  construing  the provisions  of  the  same Section 6  of  the  Prevention  of Corruption  Act, 1947 held that no sanction under Section  6 of  that Act was necessary for prosecution of the  appellant in that case since he had retired from service on  attaining the  age of superannuation and was not a public  servant  on the date of filing the charge sheet. 14.However,  it  was contended that while the  Governor  had given sanction to prosecute the Chief Minister when he  con- tinued to be an MLA in the case of R.S. Nayak v. A.R.Antulay [supra], the question whether the sanction was necessary  to prosecute  an  MLA as a public servant did not  arise.   It, was, therefore, contended that although the offence  alleged to have been committed was during the appellants’ tenure  as ministers,   the  appellants  continued  to  be  MLAs   and, therefore, as public servants on the day of the launching of prosecution and hence sanction of the Governor under Article 192  of the Constitution was necessary.  This  question  has also  been answered in R.S. Nayak v. A.R.  Antulay  [supra]. Referring  to this Court’s decision in The State of  (S.P.E. Hyderabad)  v.  Air Commodore Kailash Chand  [(1980)  2  SCR 697], this Court held as follows:               ".........  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               cogaizance 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." 15.  Assuming  therefore, that the MLA is a  public  servant within  the meaning of Section 2 (c) (viii) of the  Act,  in view  of the aforesaid proposition of law laid down in  R.S. Nayak v. A.R. Antulay [supra], this contention also does not merit any consideration. 16.In view of the above, the appeals are dismissed. 8