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PETITIONER: K. VEERASWAMI

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT25/07/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J) SHARMA, L.M. (J) VENKATACHALLIAH, M.N. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 SCR  (3) 189        1991 SCC  (3) 655  JT 1991 (3)   198        1991 SCALE  (2)150

ACT:     Prevention  of  Corruption Act, 1947:  Ss.  2,  5(1)(e), 5(2),  6(1)(c)-Public servant--Possession of  pecuniary  re- sources  or  property disproportionate to known  sources  of income----Prosecution  after  superannuation-Previous  sanc- tion-- Whether necessary.     Judge  of  High  Court/Supreme  Court--Whether   ’public servant’,  liable to prosecution under the  Act--Sanctioning authority--Who is.     Sanctioning  authority--Whether vertically  superior  in the hierarchy in which office of the public servant exists.     Cl. (c) of s. 6(1)--Whether independent of and  separate from clauses (a) and (b)--Rule of ejusdem  generis--Applica- bility of.     Independence of Judiciary--Whether affected by  applica- tion  of the Prevention of Corruption Act to Judges of  High Court/Supreme Court--Issuance of guidelines by Court.     Indian  Penal Code, 1860: Ss.  19,  21--"Judge"--Whether includes  a High Court/Supreme Court Judge--Whether  ’public servant’ under s. 2 of Prevention of Corruption Act.     Constitution of India, 1950: Articles 74, 79, 121,  211, 124,  217, 2 18--Provision for initiation of proceeding  for removal of a Judge-Whether a ground for withholding criminal prosecution of a Judge for offence under s. 5(1) (e) of  the Prevention of Corruption Act, 1947.     Independence  of Judiciary----Effect of  application  of Prevention  of  Corruption Act, ]947 to Judges  of  superior Courts.     Code  of  Criminal  Procedure, 1973:  Ss.  154,  173(2), 173(5)-Offence committed by public servant under s.  5(1)(e) of  the Prevention of Corruption Act,   1947--Complaint  re- garding--Investigation  Requirements--Police   report/Charge sheet--Contents of 190     Evidence  Act, 1872: S. 106--Offence committed under  s. 5(1)(e) of Prevention of Corruption Act, 1947--Possession of property  disproportionate  to known  sources--Whether  fact within  special knowledge of the public  servant--Burden  of proof----On whom. Words and Phrases.’ "satisfactorily account"--Meaning of. Statutory  Interpretation:  Rule  of  ejusdem   generis--Ex-

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plained.

HEADNOTE:     A  complaint against the appellant, a former Chief  Jus- tice  of a High Court, was made to the CBI on which  a  case under  s. 5(2) read with s. 5( I )(e) of the  Prevention  of Corruption  Act,  1947  was  registered  on  24.2.1976.   On 28.2.1976  the  F.I.R.  was filed in the  court  of  Special Judge.  The appellant proceeded on leave from  9.3.1976  and retired    8.4.1976 on attaining the age of superannuation.     The  investigation culminated in the filing  of  charge- sheet/final  report  under s. 173(2), Cr. P.C.  against  the appellant on 15.12.1977 before the Special Judge.     The Charge-sheet stated that the appellant after  assum- ing  office of the Chief Justice on 1.5.1969 gradually  com- menced  accumulation  of  assets and was  in  possession  of pecuniary  resources  and property, in his name and  in  the names  of  his wife and two sons,  disproportionate  to  his known  sources of income for the period between the date  of his  appointment as Chief Justice and the date of  registra- tion  of the case, and thereby he committed the  offence  of criminal misconduct under s. 5( 1 )(e), punishable under  s. 5(2) of the Prevention of Corruption Act, 1947. The  Special judge issued process for appearance of the appellant.  Mean- while, the appellant moved the High Court under s. 482,  Cr. P.C. to quash the said criminal proceedings.     The  matter was heard by a Full Bench of the High  Court which dismissed the application by 2:1 majority; but granted a  certificate  under Articles 132(1) and 134(1)(c)  of  the Constitution  in view of the important question of  law  in- volved.     In  appeal to this Court it was contended by the  appel- lant  that  the provisions of the Prevention  of  Corruption Act, 1947 do not apply to a judge of a superior Court as for such prosecution previous sanction of an authority competent to  remove  a public servant as provided under s. 6  of  the Prevention  of Corruption Act, 1947 is imperative and  power to  remove  a Judge is not vested in any  single  individual authority but is 191 vested  in  the two Houses of Parliament and  the  President under  Article 124(4) of the Constitution; that the  Parlia- ment cannot be the sanctioning authority for the purpose  of s.  6 and if the President is regarded as the authority,  he cannot  act independently as he exercises his powers by  and with  the advice of his Council of Ministers and the  Execu- tive  may ’misuse the power by interfering with the  judici- ary;  that s. 6 applies only in cases where there is  master and servant relationship between the public servant and  the authority competent to remove him, and where there is verti- cal hierarchy of public offices and the sanctioning authori- ty. is vertically superior in the hierarchy in which  office of  the public servant against whom sanction is  sought  ex- ists; that no prosecution can be launched against a Judge of a  superior Court under the provisions of the Prevention  of Corruption  Act  except  in the mode  envisaged  by  Article 124(4) of the Constitution; that no law prohibits a  public- servant having in his possession assets disproportionate  to his known  sources of income and such possession becomes  an offence  only when the public servant is unable  to  account for it; and that the public servant is entitled to an oppor- tunity  by the investigating officer to  explain  dispropor- tionality between the assets and the known sources of income

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and  the  charge sheet must contain such  an  averment,  and failure  to  mention  that  requirement  would  vitiate  the charge-sheet and render it invalid and, no offence under  s. 5(1)(e) of the Act could be made out.     On the questions: (1) whether a Judge of a High Court or of the Supreme Court is a ’public servant’ within the  mean- ing  of s. 2 of the Prevention of Corruption Act, 1947;  (2) whether  a Judge of the High Court including the Chief  Jus- tice, or a Judge of the Supreme Court can be prosecuted  for an offence under the Prevention of Corruption Act, 1947; and (3) who is the competent authority to remove a Judge  either of the Supreme Court or of the High Court from his office in order to enable that authority to grant sanction for  prose- cution  of  the Judge under the provisions of s.  6  of  the Prevention of Corruption Act, 1947. Dismissing the appeal, this Court, HELD: (Per Majority--Ray, Shetty, Sharma and Venkatachaliah, JJ).     1. A Judge of a High Court or of the Supreme Court is  a ’public  servant’ within the meaning of s. 2 of the  Preven- tion of Corruption Act, 1947. 2.  Prosecution  of a Judge of a High Court,  including  the Chief 192 Justice,  or  a Judge of the Supreme Court can  be  launched after  obtaining  sanction  of the  competent  authority  as envisaged by s. 6 of the Prevention of Corruption Act. Per Verma, J. (dissenting)--     1.  (i)  A Judge or Chief Justice of a High Court  is  a Constitutional  functionary, even though he holds  a  public office  and  in that sence he may be included  in  the  wide definition  of a public servant. But a public servant  whose category  for the grant of sanction for prosecution  is  not envisaged  by s. 6 of the Act is outside the purview of  the Act, not intended to be covered by the Act.     1(ii) The Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the  High Courts and the Supreme Court. (Per Majority--Ray, Shetty and Venkatachaliah, JJ.)     3.1  For the purpose of s. 6(1)(c) of the Prevention  of Corruption Act, 1947, the President of India is the authori- ty competent to give previous sanction for prosecution of  a Judge of a superior Court.     3.2  No criminal case shall be registered under s.  154, Cr. P.C. against a Judge of the High Court, Chief Justice of the  High Court or a Judge of the Supreme Court  unless  the Chief Justice of India is consulted in the matter.     3.3 If the Chief Justice of India himself is the  person against  whom  the allegations of  criminal  misconduct  are received,  the Government shall consult any other  judge  or Judges of the Supreme Court.     3.4 There shall be similar consultation at the stage  of examining the question of granting sanction for  prosecution and it shall be necessary and appropriate that the  question of  sanction be guided by and in accordance with the  advice of the Chief Justice of India. Sharma. J. (contra)     As to who is precisely the authority for granting previ- ous  sanction for prosecution of a Judge is a  matter  which did not arise in the instant case and will have to be final- ly decided when it directly arises. How- 193 ever, the issues of removal under Art. 124(4) of the Consti- tution  and sanction under s. 6 of the Act can  be  combined for getting clearance from the Parliament.

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Verma. J. (dissenting)     3.  Section  6 of the Act is inapplicable to  Judges  of High Courts or of the Supreme Court and such  Constitutional functionaries do not fail within the purview of the  Preven- tion of Corruption Act, 1947. Per B.C. Ray, J.     1.  A  Judge of the High Court or of the  Supreme  Court comes within the definition of public servant under s. 2  of the Prevention of corruption Act, 1947. and he is liable  to be prosecuted under the provisions of the Act. [223E-F]     2.1  A  Judge  will be liable  for  committing  criminal misconduct  within the meaning of s. 5(1)(e) of the Act,  if he  has  in his possession pecuniary resources  or  property disproportionate to his known sources of income for which he cannot satisfactorily account. [217B]     2.2 A Judge of a superior Court will not be immune  from prosecution  for  criminal  offences  committed  during  the tenure of his office under the provisions of the Act. [223F]     3.1 In order to launch a prosecution against a Judge  of a  superior Court for criminal misconduct failing  under  s. 5(1)(e)  of  the  Act, previous sanction  of  the  authority competent  to remove a Judge, including Chief Justice  of  a High Court, from his office is imperative. [217C-D; 221G]     3.2  The President of India has the power to appoint  as well  as to remove a Judge from his office on the ground  of proved misbehaviour or incapacity as provided in Article 124 of  the Constitution and, therefore he, being the  authority competent  to appoint and to remove a Judge, of  course,  in accordance  with the procedure envisaged in  clauses(4)  and (5)  of  Article 124. may be deemed to be the  authroity  to grant  sanction for prosecution of a Judge under the  provi- sions  of s. 6(1)(c) in respect of the offences provided  in s. 5(1)(e) of the Act. [225G-H; 226A-B]     3.3  In order to adequately protect a Judge from  frivo- lous  prosecution and unnecessary harassment  the  President will  consult the Chief Justice of India who  will  consider all the materials placed before 194 him and tender his advice to the President for giving  sanc- tion  to  launch prosecution or for filing FIR  against  the Judge  concerned  after being satisfied in the  matter.  The President  shall act in accordance with the advice given  by the Chief Justice of India. [226B-C]     If  the Chief Justice of India is of opinion that it  is not a fit case for grant of sanction for prosecution of  the Judge concerned, the President shall not accord sanction  to prosecute  the  Judge. This will save the  ,fudge  concerned from unnecessary harassment as well as from frivolous prose- cution against him. [226C]     In  the case of the Chief justice of the Supreme  Court, the  President shall consult such of the Judges of  the  Su- preme  Court as he may deem fit and proper and shall act  in accordance  with  the advice given to him by  the  Judge  or Judges of the Supreme Court. [226D]     3.4 In the instant case, the appellant had resigned from his office and ceased to be a public servant on the date  of lodging the F.I.R. against him by the C.B.I. and, therefore, no  sanction  under  s. 6(1)(c) of the  Act  was  necessary. [227A; 228C]       R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495, referred to.     4.1  A Judge of the Supreme Court as well as a Judge  of the High Court is a constitutional functionary and to  main- tain  the  independence of the judiciary and to  enable  the Judge to effectively discharge his duties as a judge and  to

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maintain  the  rule of law, even in respect of  against  the Central  Government  or  the State Government,  he  is  made totally  independent  of the control and  influence  of  the executive by mandatorily embodying in Article 124 or Article 217  of  the Constitution that a Judge can only  be  removed from  his office in the manner provided in clauses  (4)  and (5) of Article 124. [222B-D]     4.2 Power to remove by impeachment or address, a  person holding office during good behaviour, is an essential  coun- terpart  to the independence secured to the holders of  high office by making their tenure one of good behaviour  instead of at pleasure. [224D-E]     4.3  A Judge of the Supreme Court or of the  High  Court can only be removed on the ground of proved misbehaviour  or incapacity by an order of the President passed after follow- ing  the mandatory procedure expressly laid down in  Article 124(4)  of the Constitution. Without an address by  each  of the Houses of the Parliament, the President is not 195 empowered under the Constitution to order removal of a Judge of the Supreme Court or of the High Court from his office on the ground of proved misbehaviour or incapacity.  Therefore, the  repository of this power is not in the President  alone but  it is exercised after an address by each of the  Houses of  Parliament  in the manner provided  in  Article  124(4). [218B-H; 219A]      Union of India v. Sakalchand, AIR 1977 SC 2328 and S.P. Gupta  and Ors. v. President of India and Ors, AIR  1982  SC 149, referred to.      5.  There  is  no master and  servant  relationship  or employer  and employee relationship between a Judge and  the President of India in whom the executive power of the  Union is vested under the provisions of Article 53 of the  Consti- tution. [222E]     6.  It is necessary to evolve some  method  commensurate with  the grant of sanction in cases of serious  allegations of  corruption and acquisition or the possession of  dispro- portionate  assets which the Judge cannot  satisfactory  ac- count for or possession of property disproportionate to  the sources of income of the Judge. Otherwise, it will create  a serious  inroad on the dignity, respect and credibility  and integrity  of the high office which a superior ,fudge  occu- pies resulting in the erosion of the dignity and respect for the  high  office  of the Judges in the  estimation  of  the public. [225E-F]      7.1  The purpose of grant of previous  sanction  before prosecuting  a public servant including a Judge of the  High Court  or of the Supreme Court is to protect the Judge  from unnecessary  harassment and frivolous prosecution more  par- ticularly  to save the Judge from the  biased    prosecution for  giving  judgment  in  a case  which  goes  against  the Government or its officers though based on good reasons  and rule of law. [226D-E]      7.2 Frivolous prosecution cannot be launched against  a Judge  for giving a judgment against the Central  Government or  any of its officers inasmuch as such decision  does  not amount to misbehaviour within the meaning of Article 124  of the Constitution. [226G-H]      Shamsher Singh & Ant. v. State of Punjab, [1975] 1  SCR 814  and G.K. Daphtary v.O.P. Gupta, AIR 1971 SC  1132,  re- ferred to. Per Shetty, and Venkatachaliah, JJ. 196 1. The expression "public servant" as defined under s. 2  of the Prevention of Corruption Act, 1947 means a public  serv-

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ant  as defined in s. 21, I.P.C. From the very  commencement of the I.P.C. "Every Judge" finds a place in the  categories of  public servant defined under s. 21 and  this  expression indicates  all Judges and all Judges of all Courts. It is  a general  term  and  general term in the Act  should  not  be narrowly  construed. It must receive  comprehensive  meaning unless  there is positive indication to the contrary.  There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore excluded from the  defi- nition of ’public servant’. [237C; 240D; 242A-B]     2.1  A public servant cannot be prosecuted for  offences specified in s. 5 of the Prevention of Corruption Act, 1947, unless  there is prior sanction under s. 6  for  prosecution from the competent authority. [237E]     2.2 There are two requirements for the applicability  of clause   (c)   of  s.  6(1)  to  a  Judge  of   the   higher judiciary--the  Judge  must be a public servant,  and  there must  be an authority competent to remove him from  his  of- fice.  If these two requirements are complied with, a  Judge cannot escape from the operation of the Act. [240B-C]     2.3 The Judges are liable to be dealt with just the same way  as any other person in respect of criminal offence.  It is only in taking of bribes or with regard to the offence of corruption  the  sanction for criminal  prosecution  is  re- quired. There is no law providing protection for Judges from criminal prosecution. [252A-B]     It is not objectionable to initiate criminal proceedings against  public servant before exhausting  the  disciplinary proceedings, and a fortiori, the prosecution of a Judge  for criminal  misconduct  before his removal by  Parliament  for proved misbehaviour is unobjectionable. [252D-E]     The "proved misbehaviour" which is the basis for removal of a Judge under clause (4) of Article 124 of the  Constitu- tion may also in certain cases involve an offence of  crimi- nal  misconduct  under s. 5(1) of the Act. But  that  is  no ground  for withholding criminal prosecution till the  Judge is removed by Parliament. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both  are mutually exclusive. [251A-C]      3.1  For  the  purpose of s. 6(1)(c) of  the  Act,  the President of India the authority competent to give  previous sanction for the prosecution 197 of a Judge of the Supreme Court and the High Court.     3.2 Section 6(1) brings within its fold all the  catego- ries  of public servants as defined in s. 21 of  the  I.P.C. Clauses (a) and (b) would cover the cases of public servants who are employed in connection with the affairs of the Union or State and are not removable from their office save by  or with  the sanction of the respective government. Clause  (c) states  that  in the case of any other person  the  sanction would  be of the authority competent to remove him from  his office. [238E-F]     The  provisions  of clauses (a) and (b) of  s.  6  [(1)] cover certain categories of public servants and the  ’other’ which  means  remaining categories are  brought  within  the scope of clause (c). Clause (c) is independent of and  sepa- rate  from the preceding two clauses. The structure  of  the section  does  not permit the applicability of the  rule  of ejusdem generis. [240A-B]     3.3 The application of the ejusdem generis rule is  only to  general word following words which are less general,  or the general word following particular and specific words  of the same nature. In such a case, the general word or expres- sion is to be read as comprehending only things of the  same

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kind  as that designated by the preceding specific words  or expressions.  The general word is presumed to be  restricted to  the same genus as those of the particular  and  specific words. [239F-G]     3.4  The  construction which would promote  the  general legislative  purpose  underlying  the provision,  is  to  be preferred to a construction which would not. [247A]     If the literal meaning of the legislative language  used would lead to results which would defeat the purpose of  the Act, the Court would be justified in disregarding the liter- al  meaning and adopt a liberal construction which  effectu- ates the object of the legislature. [247A-B]     S.A.  Venkataraman v. The State, [1958] SCR 1040 and  M. Narayanan  v.  State  of Kerala, [1963] 2  Suppl.  SCR  724, referred to. Craies on Statute Law, (6th Edn. p. 531) referred to.     3.5 In view of the composition of Parliament, the nature of  transacting  business or proceeding in each  House,  the prohibition by Article 121 on discussion with respect to the conduct  of  any  Judge of the Supreme Court or  of  a  High Court, in the discharge of his duties except 198 upon  a  motion for presenting an address to  the  President praying for his removal, the Parliament cannot be the proper authority  for  granting sanction for the prosecution  of  a Judge,  That  does not, however, follow that the  Judges  of superior  Courts are entitled to be excluded from the  scope of the Act. [245C-F]     3.6 Section 6 requires to be liberally construed. It  is not a penal provision but a measure of protection to  public servants  in the penal enactment. It indicates the  authori- ties  without  whose  sanction a public  servant  cannot  be prosecuted. It is sufficient that the authorities prescribed thereunder fail within the fair sense of the language of the section. [247B-C]     The expression "the authority competent to remove"  used in  s. 6(1)(c) is to be construed to mean also an  authority without whose order or affirmation the public servant cannot be  removed.  The order of the President for  removal  of  a Judge  is  mandatory.  The motion passed by  each  House  of Parliament with the special procedure prescribed under  Art. 124(4) will not proprio vigore operate against the Judge. It will not have the consequence of removing the Judge from the office  unless it is followed by an order of the  President. Clause  (4) of Art. 124 is in the negative terms. The  order of the President is sine qua non for removal of a Judge. The President alone could make that order. [247C-E, 248C]     3.7  The relationship of master and servant as is  ordi- narily  understood in common law does not exist between  the Judges  of higher judiciary and the Government.  The  Judges are not bound nor do they undertake to obey any order of the Government  within the scope of their duties.  Indeed,  they are not Judges if they allow themselves to be guided by  the Government in the performance of their duties. [239B-D] Union of India v. H.S. Seth, [1978] 1 SCR 423, referred to.     3.8 It is not necessary that the authority competent  to give sanction for prosecution or the authority competent  to remove  the public servant should be vertically superior  in the  hierarchy  in which the office of  the  public  servant exists. There is no such requirement under s. 6 of the  Act. The power to give sanction for prosecution can be  conferred on any authority. Such authority may be of the department in which the public servant is working or an outside authority. All  that  is required is that the authority must  be  in  a position  to appreciate the materials collected against  the

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public servant to judge whether the prosecution contemplated is frivolous or speculative. [249B-C] 199 R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183, distinguished.     The  President  is not an outsider so far  judiciary  is concerned. He appoints the Judges of the High Court and  the Supreme Court in exercise of his executive powers. [249E]     Shamsher Singh v. State of Punjab, [1975] 1 SCR 365  and S.P. Gupta v. Union of India, [1982] 2 SCR 365, referred to.     Parliament has no part to play in the matter of appoint- ment  of Judges except that the Executive is responsible  to the Parliament. [249G-H]     3.9  In  the instant case, the view taken  by  the  High Court  that  no sanction for prosecution  of  the  appellant under  s.  6 of the Act was necessary since he  had  retired from the service on the age of superannuation and was not  a public  servant on the date of filing the  charge-sheet,  is unassailable. The question is no longer res integra.  [254G- H; 255C]     S.A.  Venkataraman v. The State, [1958] SCR  1040;  C.R. Bansi  v.  State of Maharashtra, [1971] 3 SCR 236  and  K.S. Dharmadatan v. Central Government & Ors., [1979] 3 SCR  832, referred to. R.S. Nayak & Ors v.A.R. Antulay, [1984] 2 SCR 183, referred to.      4.1 There are various protections afforded to Judges to preserve  the independence of the judiciary. They have  pro- tection from civil liability for any act done or ordered  to be done by them in discharge of their judicial duty  whether or not such judicial duty is performed within the limits  of their  jurisdiction,  as  provided under s.  1  of  Judicial Officers Protection Act, 1850. Likewise s. 77, I.P.C.  gives them protection from criminal liability for an act performed judicially. A discussion on the conduct of the Judges of the Supreme Court and the High Courts in the discharge of  their duties  shall not take place in Parliament or in  the  State Legislatures,  as envisaged by Articles 121 and 211  of  the Constitution.  The  Supreme Court and the High  Courts  have been  constituted  as  Courts of Record with  the  power  to punish for committing contempt as laid down by Articles  129 and 215. The Contempt of Courts Act, 1971 provides power  to take civil and criminal contempt proceedings. The  Executive is  competent  to appoint the Judges but  not  empowered  to remove them. The power to remove is vested in Parliament  by the process analogous to impeachment as envisaged by Article 124 of the Constitution. [251E-H; 242E] 200 4.2 Previous sanction of the competent authority as  contem- plated by s. 6 is only to protect the honest public servants from  frivolous  and vexatious  prosecution.  The  competent authority may refuse sanction for prosecution if the offence alleged  has  no material to support or it is  frivolous  or intended to harass the honest officer. But he is duty  bound to grant sanction if the material collected lend credence to the  offence  complained of the discretion  to  prosecute  a public servant is taken away from the prosecuting agency and is  vested in the authority competent to remove  the  public servant.  The latter would be in a better position than  the prosecuting  agency  to assess the material collected  in  a dispassionate and reasonable manner and determine whether or not  the  sanction for prosecution deserves to  be  granted. [237F-G; 238A-C] 4.3  The apprehension, that the Executive being the  largest litigant  is  likely to misuse the power  to  prosecute  the Judges,  in our overlitigious society is pot unjustified  or

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unfounded. The Act provides certain safeguards like s. 6 and trial  by the court which is independent of  the  Executive. But  these  safeguards may not be  adequate.  Any  complaint against  a Judge and its investigation by the CBI, if  given publicity, will have a far reaching impact on the Judge  and the  litigant public. The need therefore is a judicious  use of  taking action under the Act. Care should be  taken  that honest and fearless Judges are not harassed. They should  be protected. [252G-H; 253A-C]     5.1 There is no need for a separate legislation for  the Judges.  The Act is not basically defective in its  applica- tion  to  judiciary.  All that is required is  to  lay  down certain  guidelines lest the Act may be misused. This  Court being  the ultimate guardian of rights of people  and  inde- pendence of the judiciary will not deny itself the  opportu- nity to lay down such guidelines. This Court is not a  Court of  limited  jurisdiction of only dispute  settling.  Almost from the beginning, this Court has been a law maker, albiet, ’interstitial’  law maker. Indeed the Court’s role today  is much  more.  It  is expanding beyond  dispute  settling  and interstitial  law  making.  It is a problem  solver  in  the nebulous areas. [253E-G]     5.2 The Chief Justice of India is a participatory  func- tionary  in the matter of appointment of Judges of  the  Su- preme  Court and the High Courts; he is to be  consulted  by the President of India even for transfer of a Judge from one High  Court to another; and question of age of a Judge of  a High Court shall be decided by the President after  consult- ing  him. The Chief Justice of India being the head  of  the Judiciary  is  primarily concerned with  the  integrity  and impartiality  of the judiciary. Hence it is  necessary  that the Chief Justice of India is not 203 either from the evidence of the prosecution and/or  evidence from the defence. [259F-G]     8.3  Parliament  is  competent to place  the  burden  on certain  aspects on the accused as well and particularly  in matters  "especially within his knowledge". (s. 106  of  the Evidence Act). Adroitly the prosecution cannot, in the  very nature  of  things,  be expected to know the  affairs  of  a public servant found in possession of resources of  property disproportionate  to his known sources of income. It is  for him to explain. Such a statute placing burden on the accused cannot  be regarded as unreasonable, unjust, or unfair.  Nor can it be regarded as contrary to Article 21 of the  Consti- tution. The principle that the burden of proof is always  on the  prosecution  and never shifts to the accused is  not  a universal  rule to be followed in every case. The  principle is applied only in the absence of statutory provision to the contrary. [260A-C]     Woolmington  v. Director of Public  Prosecution,  [1935] A  .C.  462; C.S.D. Swamy v. The State, [1960]  1  SCR  461; Surajpal  Singh  v.  The State of U.P., [1961]  2  SCR  971; Sajjan  Singh v. The State of Punjab, [1964] 4 SCR 630;  Rig v. Hunt, [1986] 3 WLR 1115 and Maharashtra v. K.K.S.  Ramas- wamy, [1978] 1 SCR 274, referred to.     State  of Maharashtra v. Wasudeo  Ramchandra  Kaidalwar, [1981] 3 SCR 675, referred to.     9.1 To state that after collection of all material,  the investigating  officer must give an opportunity to  the  ac- cused  and  call upon him to account for the excess  of  the assets  over  the known sources of income  and  then  decide whether  the  accounting is satisfactory or  not,  would  be elevating  him  to the position of an enquiry officer  or  a judge.  He is not holding an enquiry against the conduct  of

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the  public servant or determining the disputed  issues  re- garding  the disproportionality between the assets  and  the income  of the accused. He just collects material  from  all sides and prepares a report which he files in the Court as a chargesheet.  The investigating officer is only required  to collect  material  to find out whether the  offence  alleged appears to have been committed. In the course of the  inves- tigation, he may examine the accused. Indeed, fair  investi- gation  requires  that  the accused should not  be  kept  in darkness. He should be taken into confidence if he is  will- ing to cooperate. [261B-E]     10.1  The charge-sheet is nothing but a final report  of the  police officer under s. 173(2) of the Cr. P.C.  Section 173(2) provides that on 204 completion of the investigation the police officer  investi- gating  into  a cognizable Offence shall  submit  a  report, which must be in the form   prescribed by the State  Govern- ment.  The  statutory  requirement of the  report  under  s. 173(2)  would be complied with if the various  details  pre- scribed  therein are included in the report and it  accompa- nies  all the documents and statements of witnesses  as  re- quired by s. 172(5) Cr. P.C. Nothing more need be stated  in the  report  of the investigating officer. It  is  also  not necessary that all the details of the offence must be  stat- ed. The details of the offence are required to be proved  to bring home the guilt of the accused at a later stage in  the course  of  the  trial of the case  by  adducing  acceptable evidence. [261E-H; 262A-C]     Satya Narain Musadi and Ors. v. State of Bihar, [1980] 3 SCC 152, referred to.     10.2 In the instant case, the charge sheet contained all the  requirements of s. 173(2), Cr.P.C. It stated  that  the investigation showed that between 1.5.1969 and 24.2.1976 the appellant had been in possession of the pecuniary  resources and  property in his own name and in the names of  his  wife and  two  sons,  which were disproportionate  to  the  known sources of income over the same period and he cannot  satis- factorily  account for such disproportionate  pecuniary  re- sources and property. The details of properties and  pecuni- ary  resources of the appellant also were set out  in  clear terms.  No  more  was required to be stated  in  the  charge sheet.  It  was  fully in accordance with the  terms  of  s. 173(2),  Cr.P.C.  and clause (e) ors. 5(1)(e)  of  the  Act. [262C-E]     11.  The  society’s  demand for honesty in  a  Judge  is exacting and absolute. The standards of judicial  behaviour, both on and off the Bench, are normally extremely high.  For a judge to deviate from such standards of honesty and impar- tiality is to betray the trust reposed on him. No excuse  or no  legal  relativity can condone such  betrayal.  From  the standpoint  of  justice the size of the bribe  or  scope  of corruption  cannot  be  the scale for  measuring  a  judge’s dishonour.  A  single dishonest judge  not  only  dishonours himself and disgraces his office but jeopardises the  integ- rity of the entire judicial system. [262F-H; 263A]     A judicial scandal has always been regarded as far  more deplorable than a scandal involving either the Executive  or a  member of the Legislature. The slightest hint of  irregu- larity  or  impropriety in the Court is a  cause  for  great anxiety and alarm. [263A-B] Per Sharma, J.: 1. The expression "public servant" used in the Prevention of 205 Corruption  Act, 1947 is undoubtedly wide enough  to  denote

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every Judge, including the Judges of the High Courts and the Supreme Court [263D]     2.1  Section  2  of the Act  adopts  the  definition  of "public  servant" as given in s. 21, I.P.C.  which  includes "Every  Judge". If the legislature had intended  to  exclude Judges  of  the High Courts and the Supreme Court  from  the field of s. 5 of the Act, it could have said so in unambigu- ous  terms instead of adopting the wide meaning of  the  ex- pression "public servant" as given in the Indian Penal Code. [266E-F]     2.2  No person is above the law. In a  proceeding  under Article  124  of  the Constitution, a Judge  can  merely  be removed  from  his office. He cannot be convicted  and  pun- ished. In a case where there is a positive finding  recorded in such a proceeding against the Judge and on that ground he is  removed from his office, it cannot be said that he  will escape  the criminal liability. In a civilised  society  the law  cannot  be  assumed to be leading  to  such  disturbing results. [265G; 266A-B]     2.3  It  is not safe to assume that  the  Prevention  of Corruption  Act  intended  to make in  its  application  any discrimination  between the lower and the higher  judiciary. There cannot be any rational ground on the basis of which  a member of a higher judiciary may be allowed to escape prose- cution  while  in identical circumstances a  member  of  the subordinate judiciary is tried and convicted. Such an inter- pretation of the Act will militate against its constitution- al validity and should not, therefore, be preferred.  [265C- E]     3.1  The  power to remove a High Court  Judge  from  his office  does  exist and has to be exercised  in  appropriate circumstances according to the provisions of Article |24  of the Constitution. It cannot, therefore be said that previous sanction  for  his  prosecution cannot  be  made  available. [266D-E]     3.2 Section 6(1)(c) of the Act speaks of the  "authority competent  to remove" the public servant "from his  office". An  answer  in the negative to the question  as  to  whether there  is  some authority competent to remove a Judge  of  a High Court will be inconsistent with Article 124 clauses (4) and (5) read with Article 218 of the Constitution.  Although more than one person are involved in the process, it is  not permissible to say that no authority exists for the  purpose of  exercising the power to remove a High Court  Judge  from his office. [264A-C] As  to  who is precisely the authority in this regard  is  a matter 206 which  does  not arise in the instant case,  but  the  vital question  whether  such an authority exists at all  must  be answered in the affirmative. [264C-D]     4.1  If  the  President is held to  be  the  appropriate authority  to  grant the sanction without reference  to  the Parliament, he will be bound by the advice he receives  from the Council of Ministers. This will seriously jeopardise the independence  of  judiciary  which is  undoubtedly  a  basic feature of the Constitution. [267D-E]     4.2  Since  the Constitution itself  has  considered  it adequate  in the matter of dealing with serious  accusations against  the  Judges  by  incorporating  the  provisions  of clauses (4) and (5) in Article 124, they must be treated  to be  appropriate and suitable; and should be resorted  to  in the  matter of prosecution also, in view of  the  Parliament enacting s. 6 of the Act in the language which attracts  the constitutional ,provisions. [268B-C]

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   4.3  It is true that the grant of sanction will  be  de- layed until the accusation is examined according to the  law enacted under Clause (5) of Article 124, but once that stage is  over and a finding is recorded against the Judge,  there should  not  be any hitch in combining the  two  matters-the removal and the grant of sanction-which are obviously inter- twined,  for  getting clearance  from  Parliament.  [268E-H; 269A]     5.1  Protection  to  the public servant  in  general  is provided  under  Article  311 of the  Constitution  and  the interest of the subordinate judiciary is further taken  care of  by  the High Courts, and this alongwith  the  provisions regarding  previous sanction shields them  from  unjustified prosecution. Similarly, protection is available to the  High Court  and  Supreme Court Judges through the  provisions  of clauses  (4) and (5) of Article 124 of the Constitution.  So far  this  aspect  is  concerned,  the  two  categories   of Judges--High Court and Supreme Court Judges on the one  hand and the rest on the other--have not been treated by the  law differently. [265C-E]     5.2 The protection to the independence of the  Judiciary is  in section 6 of the Prevention of Corruption Act,  1947, which  by providing for previous sanction of  the  authority empowered  to remove the Judge, leads to Article 124 of  the Constitution. [268A-B]     6.1 Taking into consideration the independence of  Judi- ciary as envisaged by the Constitution, if the President  of India is treated as the sanctioning authority in the case of a Judge, and the Chief Justice of 207 India  is  consulted in the matter and  steps-are  taken  in accordance  with his advice, and the executive follows  this rule  strictly, a further protection from harassment of  the Judges is uncalled for and unjustified criminal  prosecution shall  be not made available. But such a  binding  direction cannot  be issued by this Court on the basis of  the  provi- sions  of the Constitution and the Act. The approval of  the Chief Justice of India can be introduced as a condition  for prosecution only by the Parliament and not by this Court. If the Court starts supplementing the law as it stands now,  it will  be  encroaching upon the legislative  field.  [266G-H; 267A-B; F-H; 268A]     7.  Section 5(1)(e) does not contemplate a notice to  be served  on the accused. If the prosecuting  authority  after making a suitable enquiry, by taking into account the  rele- vant  documents and questioning relevant persons, forms  the opinion  that the accused cannot satisfactorily account  for the  accumulation of disproportionate wealth in his  posses- sion the section is attracted. [269B-D]     8.  In  the instant case, the records  clearly  indicate that  after  duly taking all the appropriate  steps  it  was stated that the assets found in the possession of the appel- lant  in his own name and in the names of his wife  and  two sons,  were disproportionate to his known sources of  income during  the relevant period and for which he "cannot  satis- factorily account". [269D-E] Per Verma, J. (dissenting)-     1.1  A Judge or Chief justice of a High Court is a  Con- stitutional  functionary,  even  though he  holds  a  public office  and  in that sense he may be included  in  the  wide definition of a ’public servant’. However, the holder of  an office  who  may be a public servant according to  the  wide definition of the expression in the prevention of corruption Act,  but whose category for grant of sanction for  prosecu- tion is not envisaged by s. 6 is outside the purview of  the

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Act, not intended to be covered by the Act. [289F; 286D-E]     1.2 Section 6(1)(c) of the Prevention of Corruption Act, 1947,  is  inapplicable to a Judge of a High  Court  or  the Supreme  Court and such constitutional functionaries do  not fall within the purview of the Act. [296B]     1.3  Previous sanction under s. 6 of the  Prevention  of Corruption  Act, 1947, is a condition precedent  for  taking cognizance  of  an offence punishable under the  Act,  of  a public servant who is prosecuted during 208 his  continuance in the office. The public  servant  failing within  the purview of the Act must invariably  fail  within one  of  the three clauses in s. 6(1). If the holder  of  an office, even though a public servant according to the  defi- nition  in the Act does not fail within any of  the  clauses (a), (b) or (c) of sub-section (1), he must be deemed to  be outside the purview of the Act since this special  enactment was not enacted to cover that category of public servants in spite of the wide definition of ’public servant’ in the Act. [286A-B]     1.4  Section 6(1)(c) speaks of ’authority  competent  to remove’, which plainly indicates the substantive  competence of  the  authority to remove, not merely the  procedural  or formal part of it. The authority itself should be  competent to  remove or the one to decide the question of removal  and not  one  which merely obeys or implements the  decision  of some  other  authority. It contemplates  that  the  removing authority  should have the competence to take a decision  on the  material placed before it for the purpose  of  deciding whether the public servant, against whom sanction is sought, has  been prima facie guilty of abuse of his office so  that there is occasion to bring about cessation of  interrelation between the office and abuse by the holder of the office  by his removal therefrom. [291A-C]       R.S. Nayak v.A.R. Antulay, [1984] 2 SCC 183,  referred to.     1.5 The competent sanctioning authority envisaged by  s. 6(  1  )(c) is a vertical superior in the  hierarchy  having some  power of superintendence over the functioning  of  the public  servant.  Where no such relationship exists  in  the absence  of  any vertical hierarchy and the  holder  of  the public office is a constitutional functionary not subject to power  of superintendence of any superior, s. 6 can have  no application  by  virtue  of the  scheme  engrafted  therein. [291C-D]     1.6  Construction of s. 6(1)(c) of the Act treating  the President as the competent authority to remove a High  Court Judge would conflict with the provisions enacted in  clauses (4)  and  (5) of Article 124 read with Article  218  of  the Constitution. Such a construction has to be avoided.  [295B- C]     1.7 The Prevention of Corruption Act is wholly  workable in  its  existing form for the public  servants  within  its purview  and there is no impediment in its applicability  to the large number of public servants who have been dealt with thereunder ever since its enactment. [274A] 209      1.8  In  view  of the  special  provisions  enacted  in clauses (4) and (5) of Article 124 read with Article 218  of the Constitution, non-application of s. 6(1) of the  Preven- tion of Corruption Act, 1947 to the Constitutional function- aries  such  as Judges of the High Courts  and  the  Supreme Court,  would result only in the failure of the  attempt  to bring  them  within the purview of the Act,  while  the  Act would  continue to apply to the public servants  in  general

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who  fail within the scheme of s. 6 of the Act 1or the  pur- pose of grant of previous sanction for prosecution which  is a condition precedent for cognizance of an offence  punisha- ble under that Act. [295A-E]      2.1 The construction made of the provisions of the  Act must also fit in within the scheme of clauses (4) and (5) of Article  124  read with Article 218 of the  Constitution  in order to present a harmonious scheme. [294C-B]     2.2 There can be no doubt that the expression  ’misbeha- viour’  is  of  wide import and includes  within  its  ambit criminal miscondust as defined in sub-section (1) of s. 5 of the  Act as also lesser misconduct of a Judge falling  short of criminal misconduct. The special law envisaged by Article 124(5)  for dealing with the misbehaviour of a Judge  covers the  field of ’investigation’ and ’proof’ of  the  ’misbeha- viour and the only punishment provided is by Article  124(4) of removal from office. [294D-E]     2.3 Article 124(5) of the Constitution is wide enough to include within its ambit every conduct of a Judge  amounting to misbehaviour including criminal misconduct and prescribes the procedure for investigation and proof thereof. [294E]     2.4  Even for the procedure for investigation  into  any misbehaviour of a Judge as well as its proof, a law  enacted by  the Parliament under Article 124(5) is envisaged in  the constitutional scheme. Such a law in the form of the  Judges (Inquiry) Act, 1968 and the Rules framed thereunder has been enacted. These provisions were made in the Constitution  and the law thereunder enacted when the Prevention of Corruption Act, 1947 was in the statute book. [294F-G]     2.5 The prior enactment and existence of the  Prevention of Corruption Act, 1947 at the time when clauses (4) and (5) of  Article 124 of the Constitution were framed, does  indi- cate the constitutional scheme that a separate parliamentary law to deal with the investigation and proof of misbehaviour of  a Judge was clearly contemplated by providing a  special machinery for this category of constitutional func- 210 tionaries  notwithstanding  the general  law  available  and applicable to the public servants in general, which included the Prevention of Corruption Act, 1947. [294G-H; 295A]     2.6  In  view of the special provisions in the  form  of clauses  (4) and (5) of Article 124 and Article 218  of  the Constitution,  and the special enactment by  the  Parliament under Article 124 (5) provided in the Constitutional  scheme for  Judges  of the High Courts and the  Supreme  Court,  it cannot be said that they are governed by the general  provi- sions  in addition to these special provisions enacted  only for  them. The need for these special provisions is a  clear pointer  in the direction of inapplicability to them of  the general provisions applicable to the public servants holding other  public offices, not as constitutional  functionaries. [295A-B]     2.7  The  view that Judges of the High  Courts  and  the Supreme  Court are outside the purview of the Prevention  of Corruption  Act, fits in with the constitutional scheme  and is  also in harmony with the several nuances of  the  entire existing  law  relating  to the superior  Judges  while  the contrary view fouls with it at several junctures and  leaves many  gaping holes which cannot be filled by judicial  exer- cise. [303F-G]     2.8  The Prevention of Corruption Act, 1947, as  amended by the 1964 amendment, is inapplicable to Judges of the High Courts and the Supreme Court. [304A]     46 Am. Jur. 2d. $ 84, referred to.     3.1  There is practical difficulty in applying  criminal

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misconduct, defined in clause (e) of sub-section (1) of s. 5 of the Act to a Judge of a High Court or the Supreme  Court. [296C]     3.2 The words in clause (e) of s. 5 (1) of the Act  have to be given some meaning which would place the burden on the prosecution, howsoever light, to make out a prima facie case for obtaining sanction of the competent authority under s. 6 of the Act and this can be done only if it is read as a part of the scheme under which the public servant is required  to furnish  particulars of his assets with reference  to  which the  disproportion and his inability to  satisfactorily  ac- count can be inferred. [297A-B]     3.3 While according sanction to prosecute under s. 6  of the Act, the competent authority has to satisfy itself about the public servant’s inability to satisfactorily account for possession of disproportionate assets. The competent author- ity before granting sanction has to apply 211 its  mind  and be satisfied about the existence of  a  prima facie  case  for prosecution of the public  servant  on  the basis of the material placed before it. In order to form  an objective opinion, the competent authority must have  before it  the version of the public servant on the basis of  which the  conclusion can be reached whether it amounts to  satis- factory account or not. [296E-F]     3.4  The  rules  applicable to the  public  servants  in general  regulating  their conduct require them  to  furnish periodical information of their assets which form a part  of their  service record. In the case of such  public  servants whenever  sanction  to prosecute is sought under s.  6,  the competent  authority can form the requisite opinion  on  the basis of the available material including the service record of the public servant to code to the conclusion whether  the offence  under clause (e) of s. 5 (1) of possession of  dis- proportionate assets which the public servant cannot  satis- factorily account is made outprima facie. [296F-G, 297C-D]     3.5  In  the case of Judges of the High Courts  and  the Supreme  Court, there is no requirement under any  provision of furnishing particulars of their assets so as to provide a record  thereof with reference to which such an opinion  can be  formed  and  there is no vertical  superior  with  legal authority  enabling obtaining of information from  the  con- cerned  Judge. This too is a pointer in the  direction  that even after the 1964 amendment of the Act the Legislature did not  intend  to include Judges of the High  Courts  and  the Supreme Court within the purview of the enactment. [297D-F]     4.1  If  the  Act is applicable to Judges  of  the  High Courts  and the Supreme Court, it is obvious that  the  same must apply also to the Chief Justice of India, the Comptrol- ler and Auditor General and the Chief Election Commissioner. Incongruous results would follow in such an event. [297F-G]     4.2 If the involvement of the Chief Justice of India  is necessary  even  for commencing the investigation  into  the offence, and the President while granting the sanction under s. 6(1)(c) is also assumed to act on the advice of the Chief Justice  of India and if it is permissible to do so  in  the absence of any ’such provision in the Act, the problem would arise  where such action is contemplated against  the  Chief Justice of India himself. [297G-H; 298A] 4.3 Any provision which cannot apply to the Chief Justice of 212 India,  cannot apply to the Judges of the Supreme Court,  or for  that  matter even to the High Court Judges,  since  the Chief Justice of India is not a vertical superior of any  of them,  there being no such vertical hierarchy and the  Chief

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Justice  of  India having no power of  superintendence  even over  the  High Court Judges, much less  the  Supreme  Court Judges. [298A-B]     4.4  In the case of the Comptroller and Auditor  General and the Chief Election Commissioner, the situation would  be more piquant. The Chief Justice of India cannot be  involved in  the process relating to them and there is none  else  to fill  that role in that situation. The  Constitution,  while providing  that  their position would be akin to that  of  a Judge of the Supreme Court, could not have intended to place them  on  a  pedestal higher than that of  a  Supreme  Court Judge.  If the Act was intended to apply to these  constitu- tional functionaries, it could not have been enacted leaving such  gaping holes which are incapable of being  plugged  to present a comprehensive scheme for this purpose. [298C-E]     5.1  The  need for sanction under s. 6 of  the  Act  for prosecution  of the holder of a public office indicates  the ambit  and scope of the enactment for deciding  whether  the holder  of a public office falls within the purview  of  the enactment.  No  sanction for prosecution under s. 6  is  re- quired  after the public servant ceases to hold office,  but it does not imply that every holder of a public office after ceasing  to  hold that office is within the purview  of  the enactment,  even  though during the tenure in  office,  only those  public  servants are within its ambit in  whose  case sanction under s. 6 must be obtained. [298F-H; 299A]     5.2  The ambit of the enactment is to be  determined  on the  basis of the public office held by the public  servant, which  office  is  alleged to have been  abused  during  the tenure  for  committing the offence of  criminal  misconduct under the Act and it is not the fact of continuance in  that office or ceasing to hold it which decides the ambit of  the enactment.  If  the  holder of a public  office  during  his tenure in office cannot be prosecuted without sanction under s. 6, then, no sanction for his prosecution after ceasing to hold  the  office may be necessary, but his  prosecution  is made because while in office he could be prosecuted with the previous sanction under s. 6. Conversely, if the holder of a public  office while continuing in that office could not  be prosecuted  under this Act on account of inapplicability  of s.  6 and, therefore, the non-feasibility of previous  sanc- tion for prosecution under s. 6, then on his ceasing to hold 213     5.3  It is for the purpose of construing the  provisions of the enactment and determining the scope and ambit thereof and for deciding whether the holder of a public office comes within the purview of the enactment that the feasibility  of previous sanction for prosecution and applicability of s.  6 of the Act is important since it holds the key which unlocks the true vistas of the enactment. [299D-E]     5.4  The  concept of the sanction for prosecution  by  a superior  is  so inextricably woven into the fabric  of  the enactment  that  the pattern is incomplete without  it.  The clear legislative intent is that the enactment applies  only to those in whose case sanction of this kind is contemplated and those to whom the provision of sanction cannot  squarely apply  are outside its ambit. The provision for sanction  is like the keystone in the march of the enactment. Remove  the keystone of sanction and the arch crumbles. [299E-G]        R.S.  Nayak v. A.R. A ntulay, [1984] 2 SCC 183,  dis- tinguished.     6.1 The higher judiciary was treated differently in  the Constitution  indicating  the great care and  attention  be- stowed in prescribing the machinery for making the  appoint- ments.  It was expected that any deviation from the path  of

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rectitude  at that level would be a rare phenomenon and  for the  exceptional situation the provision of removal  in  ac- cordance with clause (4) of Article 124 was made, the diffi- culty in adopting that course being itself indicative of the rarity with which it was expected to be invoked. It  appears that  for  a rare aberrant at that level, unless  the  Judge resigned  when  faced with such a  situation,  removal  from office  in accordance with Article 124(4) was  envisaged  as the only legal sanction. If this was the expectation of  the framers  of the Constitution and their vision of  the  moral fibre in the higher echelons of the judiciary in free India, there  is nothing surprising in the omission to  bring  them within  the  purview of the Prevention  of  Corruption  Act, 1947,  or absence of a similar legislation for  them  alone. This position continued even during the deliberations of the Santham  Committee  which clearly mentioned  in  ics  Report submitted  in  1964  that it has  considered  the  judiciary outside  the  ambit for its deliberations. Clearly,  it  was expected that the higher judiciary Whose word would be final in  the interpretation of all laws including  the  Constitu- tion,  will  be comprised of men leading in  the  spirit  of self-sacrifice  concerned more with their  obligations  then rights, so that there would be no occasion for any one  else to sit in judgment over them. [305H; 306A-D] 6.2 The fact that the Parliament did not enact any other law for 214 the  investigation into allegations of corruption against  a superior  Judge  and for his trial and punishment  for  that offence  and  rest content merely with enacting  the  Judges (Inquiry) Act, 1968, to provide for the procedure for remov- al  of a Judge under Article 124 (4) is a clear  pointer  in the direction that the Parliament has not as yet  considered it expedient to enact any such law for the trial and punish- ment on the charge of corruption of a superior Judge, except by  his  removal from office in the manner  prescribed.  The provisions  of the Judges (Inquiry) Act, 1968,  provide  the procedure  for investigation and proof of an  allegation  of corruption against a superior Judge and if the Prevention of Corruption Act, 1947 is held applicable to them, then  there would be two separate procedures under these two  enactments providing  for  investigation  into the  same  charge.  This anomaly and incongruity cannot be attributed to a  conscious act  of  the Parliament while enacting     Judges  (Inquiry) Act,  1968,  after the 1964 amendment in the  Prevention  of Corruption Act. [301D-F]     7.1  The constitutional functionaries namely  Judges  of High  Courts, Judges of the Supreme Court,  the  Comptroller and Auditor General and the Chief Election Commissioner were never  intended to fall within the ambit of the Act as  ini- tially enacted in 1947, when provisions similar to  Articles 124(4)  and  (5)  of the Constitution were  present  in  the Government of India Act, 1935, nor was any such attempt made by amendment of the Prevention of Corruption Act in 1964 and the same position continues in the Prevention of  Corruption Act, 1988. [300A-B]     7.2  If there is now a felt need to provide for  such  a situation, the remedy lies in suitable parliamentary  legis- lation for the purpose preserving the independence of  judi- ciary free from likely executive influence while providing a proper and adequate machinery for investigation into allega- tions  of corruption against such  constitutional  function- aries and for their trial and punishment after the  investi- gation.  The  remedy is not to extend the existing  law  and make  it workable by reading into it certain guidelines  for

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which there is no basis in it, sing the Act was not intended to apply to them. [300B-C]     7.3 The test of applicability of the existing law  would be  the  legal sanction and justiciability of  the  proposed guidelines  without  which it is unworkable in the  case  of such  persons. In fact, the very need to read  the  proposed guidelines  in  the existing law by implication is  a  clear indication that the law as it exists does not apply to them. Making  the  law applicable with the aid  of  the  suggested guidelines, is not in the domain of judicial  craftsmanship, but  a  naked usurpation of legislative power  in  a  virgin field. [300C-D] 215     8.1  Laying down guidelines to be implicitly obeyed,  if they  find no place in the existing enactment and  to  bring the  superior Judges within the purview of the existing  law on that basis would amount to enacting a new law outside the scope  of the existing law and not merely construing  it  by supplying the deficiencies to make it workable for achieving the object of its enactment. [273E-F]     S.P. Sampath Kumar v. Union of India, [1987] 1 SCC  124, distinguished.     8.2 In case a legislation like the Prevention of Corrup- tion Act for superior Judges also is considered necessary at this point of time, the Parliament can perform its  function by enacting suitable legislation, it being a virgin field of legislation. [274B]     8.3 There is no material to indicate that corruption  in judiciary was a mischief to be cured when the Prevention  of Corruption Act was enacted. For this reason, the desirabili- ty  now expressed of having such a law cannot be an  aid  to construction  of  the existing law to widen  its  ambit  and bring these constitutional functionaries within it. [273B-C]     8.4  Judicial activism can supply the  deficiencies  and fill  gaps in an already existing structure found  deficient in  some ways, but it must stop sort of building a new  edi- fice where there is none. [273D]     8.5  If it is considered that the situation has  altered requiring  scrutiny  of the conduct of even  Judges  at  the highest level, and that it is a matter for the Parliament to decide,  then the remedy lies in enacting suitable  legisla- tion  for  that purpose providing for safeguards  to  ensure independence  of judiciary since the existing law  does  not provide for that situation. [306D-E]     8.6  Any attempt to bring the Judges of the High  Courts and the  supreme Court within the purview of the  Prevention of Corruption Act by a seemingly constructional exercise  of the enactment, appears to be an exercise to fit a square peg in  a round hole when the two were never intended to  match. [306E-F]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 400 of 1979.     From the Judgment and Order dated 27.4.79 of the  Madras High Court in Criminal Misc. P. No. 265 of 1978. 216     Kapil  Sibal,  B.R.L. Iyengar, K.V. Mohan,  S.R.  Setia, K.R. Nambiar and A.K. Nigam for the Appellant.     A.D.  Giri, Solicitor General, K.T.S. Tulsi,  Additional Solicitor  General, A.M. Khanwilkar and P.  Parmeswaran  for the Respondent.     The Judgment of the Court was delivered by

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   RAY, J. I have had the advantage of deciphering the  two draft  judgments prepared by my learned brothers Shetty  and Verma,  JJ.  I agree with the conclusions arrived at  by  my learned brother Shetty, J. Yet considering the great  impor- tance  of the questions involved in this matter, I  deem  it just  and proper to consider the same and to express my  own views.     Three very important questions fall for decision in this case. First of all whether a Judge of the Supreme Court or a Judge of a High Court is a public servant within the meaning of  Section  2 of the Prevention of  Corruption  Act,  1947. Section  2 of the Prevention of Corruption Act interprets  a public  servant  as meaning a public servant as  defined  in section  21  of the Indian Penal Code i.e. Act 45  of  1860. Section  21  of the Indian Penal Code states that  a  public servant  denotes a person falling under any of the  descrip- tion mentioned therein:               "Third--Every   Judge  including  any   person               empowered  by  law to  discharge,  whether  by               himself or as a member of any body of  persons               any adjudicarory functions."     Thus,  the definition of a public servant is  very  wide enough  to  include Judges of the Supreme Court as  well  as Judges  of  the High Court. Section 77 of the  Indian  Penal Code  provides immunity to the Judges in respect of any  act done  by a Judge when acting judicially in the  exercise  of any  power which is, or which in good faith he  believes  to be, given to him by law.     The  next  question is whether a judge  of  the  Supreme Court  or a Judge of High Court including the Chief  Justice of the High Court can be prosecuted for having committed the offence of criminal misconduct as referred to in clause  (e) of  sub-section 1 of section 5 of the Prevention of  Corrup- tion Act, 1947. Provisions of clause (e) of section 5(1) are as follows:- 217               "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." Therefore,  it  is  clear that a Judge will  be  liable  for committing criminal misconduct within the meaning of  clause (e)  of sub-section (1) of section 5 of the said Act  if  he has  in his possession pecuniary resources or property  dis- proportionate  to his known sources of income for which  the public  servant  (or a Judge as the public  servant)  cannot satisfactorily account. Section 6(1)(c) specifically enjoins that no court shall take cognizance of an offence punishable under Section 5 of this Act, alleged to have been  committed by a public servant i.e. the Judge of the High Court includ- ing  the Chief Justice of the High Court as in  the  present case, except with the previous sanction under clause (c)  in the case of any other person, of the authority competent  to remove  him  from his office. So to  initiate  a  proceeding against  a Judge of a Supreme Court for criminal  misconduct failing  under  Section 5(1)(e), previous  sanction  of  the authority who is competent to remove a Judge including Chief Justice of the High Court from his office, is imperative.     A  Judge of the Supreme Court as well as a Judge of  the High  Court is a constitutional functionary appointed  under Article  124 and under Article 217 of the  Constitution  re- spectively.  Sub-article 2 of Article 124  further  provides

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that every Judge of the Supreme Court shall be appointed  by the  President  by  warrant under his hand  and  seal  after consultation  with such of the Judges of the  Supreme  Court and  of the High Courts in the States as the  President  may deem  necessary for the purpose and shall hold office  until he  attains  the age of sixty-five years. It  also  provides that  in the case of appointment of a Judge other  than  the Chief  Justice, the Chief Justice of India shall  always  be consulted.  Article 217 provides that every Judge of a  High Court  shall be appointed by the President by warrant  under his hand and seal after consultation with the Chief  Justice of  India,  the Governor of the State, and in  the  case  of appointment  of  a Judge other than the Chief  justice,  the Chief  Justice of the High Court. Sub-article 4 of the  said article  124  further enjoins that a Judge  of  the  Supreme Court  shall  not be removed from his office  except  by  an order of the President passed after an address by each House of  Parliament supported by a majority of the total  member- ship  of that House and by a majority of not less than  two- thirds of the members of that House present and voting has 218 been presented to the President in the same session for such removal on the ground of proved misbehaviour or  incapacity. Sub-article  (5)  also provides that Parliament may  by  law regulate  the procedure for the presentation of  an  address and  for the investigation and proof of the misbehaviour  or incapacity of a Judge under clause (4). Article 2 18  states that provisions of clauses (4) and (5) of Article 124  shall apply in relation to a High Court.     On a plain reading of the provisions of sub-article 4 of Article  124, a Judge of the Supreme Court can only  be  re- moved on the ground of proved misbehaviour or incapacity  by an  order of the President passed after an address  by  each House  of  Parliament supported by a majority of  the  total membership of that House and by a majority of not less  than two-thirds of the members of that House present and  voting, has been presented to the President in the same session  for such  removal on the ground of proved misbehaviour or  inca- pacity.  In  other words, the President cannot  on  its  own remove  a  Judge of the Supreme Court unless an  address  by each  House  of Parliament supported by a  majority  of  the total membership of that House and by a majority of not less than  two-thirds  of the members of that House  present  and voting,  is passed and presented to him for removal  of  the Judge  on the ground of proved misbehaviour  or  incapacity. Therefore, the repository of this power is not in the Presi- dent  alone  but it is exercised after an  address  by  each House  of  Parliament supported by a majority of  the  total membership of that House and by a majority of not less  than two-third  of the members of that House is presented to  the President.  Without such an address by each of the House  of the  Parliament,  the President is not empowered  under  the Constitution  to  order removal Of a Judge  of  the  Supreme Court  from his office. Article 2 18 lays down that a  Judge of  the  High Court may be removed from his  office  by  the President  in the manner provided under clauses (4) and  (5) of  Article  124. So viewing  the  aforesaid  constitutional provisions for removal of a Judge for proved misbehaviour or incapacity, it is imperative that each House of the  Parlia- ment  shall make an address to the President after the  same is  supported by a majority of the total membership of  that House and by a majority for not less than two-thirds of  the members  of that House present and voting. Unless  that  ad- dress is presented to the President in the same session  for such  removal,  the  President is not  empowered  under  the

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Constitution  to make the order for removal of the Judge  of the Supreme Court of India or of the Judge of the High Court on  the  ground  of proved misbehaviour  or  incapacity.  Of course, the power of the President to remove a Judge of  the Supreme Court or of the High Court is to be 219 exercised by the President in the manner expressly laid down in clause 4 of Article 124. In the case of Union of India v. Sankalchand,  AIR  1977 (SC) 2328 it has  been  observed  by majority of the Constitution Bench that there is no need  or justification,  in order to uphold or protect the  independ- ence of the judiciary, for construing Article 222(1) to mean that  a Judge cannot be transferred from one High  Court  to another without his consent.               "The  power to transfer a High Court Judge  is               conferred by the Constitution in public inter-               est  and not for the purpose of providing  the               executive with a weapon to punish a Judge  who               does not toe its line or who, for some  reason               or  the other, has fallen from its grace.  The               executive  possesses no such power  under  our               Constitution  and if it can be shownthough  we               see  the difficulties in such showing--that  a               transfer  of a High Court Judge is made  in  a               given  case  for  an  extraneous  reason,  the               exercise  of  the power can  appropriately  be               struck  down as being vitiated by  legal  mala               fides.  The  extraordinary  power  which   the               Constitution has conferred on the President by               Art.  222(1) cannot be exercised in  a  manner               which  is calculated to defeat or  destroy  in               one  stroke  the  object and  purpose  of  the               various  provisions  conceived with such  care               to  insulate the judiciary from the  influence               and  pressures of the executive. The power  to               punish  a  High  Court Judge, if  one  may  so               describe it, is to be found only in Art. 2  18               read with Art. 124(4) and (5) of the Constitu-               tion,  under which a Judge of the  High  Court               can be removed from his office by an order  of               the President passed after an address by  each               House  of Parliament, supported by a  majority               of the total membership of that House and by a               majority  of not less then two-thirds  of  the               members of that House present and voting,  has               been  presented to the President in  the  same               session  for  such removal on  the  ground  of               proved  misbehaviour or incapacity.  Thus,  if               the power of the President, who has to act  on               the  advice  of the Council of  Ministers,  to               transfer  a High Court Judge for  reasons  not               bearing on public interest but arising out  of               whim, caprice or fancy of the executive or its               desire  to  bend  a Judge to its  own  way  of               thinking,  there  is  no  possibility  of  any               interference  with  the  independence  of  the               judiciary  if a Judge is  transferred  without               his consent. The  same view about the independence of the judiciary  from the con- 220 trol of the executive has been spelt out by the observations of  the  Constitution Bench of Seven Judges in the  case  of S.P.  Gupta & Ors. v. President of India and Ors., AIR  1982 (SC) 149.

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                      "The   concept  of  independence   of               judiciary  is a noble concept  which  inspires               the  Constitutional Scheme and constitute  the               foundation  on which rests the edifice of  our               democratic  polity. If there is one  principle               which  runs through the entire fabric  of  the               Constitution, it is the principle of the  rule               of  law and under the Constitution, it is  the               judiciary which is entrusted with the task  of               keeping  every organ of the State  within  the               limits of the law and thereby making the  rule               of law meaningful and effective. It is to  aid               the  judiciary in this task that the power  of               judicial  review has been conferred  upon  the               judiciary  and it is by exercising this  power               which  constitutes  one  of  the  most  potent               weapons in armoury of the law, that the  judi-               ciary  seeks  to protect the  citizen  against               violation  of  his  constitutional  or   legal               rights  or  misuse of abuse of  power  by  the               State  or its officers. The  judiciary  stands               between the citizen and the State as a bulwark               against executive excesses and misuse or abuse               or  power  by the executive and  there  it  is               absolutely  essential that the judiciary  must               be  free from executive pressure or  influence               and this has been secured by the  Constitution               makers  by making elaborate provisions in  the               Constitution  to which detailed reference  has               been  made  in the  judgments  in  Sankalchand               Sheth’s  case (AIR 1977 SC 2326) (supra).  But               it  is necessary to remind ourselves that  the               concept  of independence of the  judiciary  is               not  limited only to independence from  execu-               tive  pressure or influence but it is  a  much               wider  concept  which takes within  its  sweep               independence  from  many other  pressures  and               prejudices.  It  has many  dimensions.  namely               fearlessness  of other power centres  economic               or  political,  and  freedom  from  prejudices               acquired  and nourished by the class of  which               the  Judges belong. If we may again quote  the               eloquent words of Justice Krishna Iyer:                        "Independence of the judiciary is not               genuflexion;  nor  is it opposition  to  every               proposition  of  Government.  It  is   neither               judiciary  made  to  opposition  measure   nor               Government’s pleasure.               221                        The  tyceon,  the  communalist,   the               parochialist,  the faddist, the extremist  and               radical reactionary lying coiled up and   sub-               consciously   shaping   judicial    menrations               are menaces to judicial independence when they               are  at variance with parts III and IV of  the               Paramount Parchment".                        Judges  should be of stern stuff  and               tough fibre, unbending before power,  economic               or  political, and they must uphold  the  core               principle  of the rule of law which  says  "Be               you ever so high, the law is above you."  This               is the principle of independence of the  judi-               ciary which is vital for the establishment  of               real  participatory democracy, maintenance  of               the  rule  of  law as a  dynamic  concept  and

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             delivery  of social justice to the  vulnerable               sections of the community. It is this  princi-               ple of independence of the judiciary  which we               must  keep  in  mind  while  interpreting  the               relevant provisions of the Constitution.     The third most crucial question that fails for consider- ation  in  this case is who is the  competent  authority  to remove  a Judge either of the, Supreme Court or of the  High Court  from his office in order to enable that authority  to grant sanction for prosecution of the Judge under the provi- sions as enjoined by Section 6 of the Prevention of  Corrup- tion Act, 1947. Section 6 has been couched in negative terms to the following effect:               "No Court shall take cognizance of an  offence               punishable  under Section 16 1 or Section  164               or Section 165 of the Indian Penal Code (45 of               1860), or under sub-section (2) or sub-section               (3A) of Section 5 of this Act, alleged to have               been  committed  by a public  servant,  except               with the previous sanction,  ...               (c)  in the ease of any other person,  of  the               authority  competent  to remove him  from  his               office.     In order to launch a prosecution against a Judge  either of the Supreme Court or of the High Court or the Chief  Jus- tice  of the High Court previous sanction of  the  authority competent  to remove a Judge from his office is  mandatorily required. The question, therefore, arises who is the author- ity  competent to grant sanction. The Judge of  the  Supreme Court or the Judge of the High Court is appointed under  the provisions of Article 124 or under the provisions of Article 217 respec- 222 tively.  A Judge of the Supreme Court shall be appointed  by the  President by the warrant under his hand and seal  after consultation  with such Judges of the Supreme Court  and  of the High Court in the State as the President may deem neces- sary for the purpose and shall hold office until he  attains the  age of 65 years. Similarly, a Judge of the  High  Court shall be appointed by the President by the warrant under his hand  and seal after consultation with the Chief Justice  of India, the Governor of the State, and in case of an appoint- ment  of the Judge other than the Chief Justice,  the  Chief Justice  of the High Court and shall hold office  except  in the  case of an additional judge till he attains the age  of 62  years.  It is, therefore, evident that a  Judge  of  the Supreme  Court  as well as a Judge of the High  Court  is  a constitutional  functionary  as has been  observed  by  this Court  in the decisions cited hereinbefore and  to  maintain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a Judge and to  maintain the rule of law, even in respect of lis against the  Central Government or the State Government. The Judge is made total- ly independent of the control and influence of the executive by mandatorily embodying in article 124 or article-217  that a  Judge can only be removed from his office in  the  manner provided in clause (4) and (5) of article 124. Thus, a Judge either  of the High Court or of the Supreme Court  is  inde- pendent of the control of the executive while deciding cases between  the  parties including the Central  Government  and State  Government  uninfluenced by the State in  any  manner whatsoever. It is beyond any pale of doubt that there is  no master  and  servant relationship or employer  and  employee relationship  between  a  Judge of the High  Court  and  the President of India in whom the executive power of the  Union

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is vested under the provisions of Article 53 of the  Consti- tution.  The President has not been given the sole power  or the exclusive power to remove a Judge either of the  Supreme Court or of the High Court from his office though the Presi- dent  appoints the Judge by warrant under his hand and  seal after  consultation with such of the Judges of  the  Supreme Court  and  of the High Court in the States as he  may  deem necessary for that purpose and in case of the appointment of the Judge of the High Court, the President appoints a  Judge by  warrant under his hand and seal after consultation  with the Chief Justice of India, the Governor of the State and in a  case of appointment of a Judge other than the Chief  Jus- tice, the Chief Justice of the High Court. The only mode  of removal  of a Judge from his office on the ground of  proved misbehaviour  or incapacity is laid down in clauses (4)  and (5) of Article 124. It is has been eloquently and vehemently urged on behalf of the appellant that since the Judge of the Supreme  Court as well as of the High Court is  a  constitu- tional functionary and           223 there is no employer and employee relationship or master and servant relationship between the Judge and the President  of India  and  for  that the Central Government  or  the  State Government  there is no authority to remove the  Judge  from ’his  office by the executive except by taking  recourse  to procedure of impeachment as envisaged in Article 124(4)  and (5) of the Constitution of India. It has been further  urged in this connection that if it is assumed that the  President has  the power to remove a Judge of the Supreme Court or  of the  High  Court from his office it will do  away  with  the independence  of the judiciary and will being the  judiciary under the control of the executive indirectly in as much  as under Article 74 of the Constitution of India, the President while  exercising his executive power has to act on the  aid and advice of the Council of Ministers with the Prime Minis- ter at the Head, as has been held by this Court in  Shamsher Singh  & Anr. v. State of Punjab, [1975] 1 SCR 814 and  S.P. Gupta  & Ors. etc. etc. v. Union of Inida & Ors. etc.  etc., (supra). It has been, therefore, urged that Section  6(i)(C) of the Prevention of Corruption Act, 1947 is not  applicable to  the case of a Judge of the Supreme Court or of the  High Court No prosecution can be launched against a Judge of  the Supreme  Court or of the High Court under the provisions  of the  said Act except in the mode envisaged in  Article  124, clauses  4  and  5 of the Constitution for  removal  of  the Judge.  The FIR in question, which has been  lodged  against the  appellant should be quashed and set-aside Section 2  of the Prevention of Corruption Act denotes a public servant as defined in Section 21 of the Indian Penal Code (45 of 1860). It  has  been  noticed hereinbefore that  the  third  clause particularly of Section 21 of the Indian Penal Code includes every  Judge including any person empowered by law  to  dis- charge  whether  by himself or as a member of  any  body  of persons any adjudicatory functions. Therefore a Judge of the High Court or of the Supreme Court comes within the  defini- tion  of  public servant and he is liable to  be  prosecuted under  the provisions of ’the Prevention of Corruption  Act. It  is  farthest from our mind that a Judge of  the  Supreme Court or that of the High Court will be immune from prosecu- tion  for criminal offences committed during the  tenure  of his office under the provisions of the Prevention of Corrup- tion Act.     In  these circumstances the only question to be  consid- ered is who will be the authority or who is the authority to grant sanction for prosecution of a Judge of the High  Court

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under  section 6(1)(c) of the said Act. The Judge as a  con- stitutional functionary being appointed by the President can only be removed by mandatory procedure provided under  Arti- cle  124  of the Constitution and in no  other  manner.  The Judges (Inquiry) Act, 1968 has been enacted by Parliament to regulate 224 the procedure for the investigation and proof of the  misbe- haviour or incapacity of a Judge of the Supreme Court  under clause  (5) of subsection 1 of Article 124 of the  Constitu- tion.  The  Judges (Inquiry) Rules, 1969  have  been  framed under  section 7(4) of the Judges (Inquiry) Act,  1968.  The said  Act  and the Rules made thereunder  only  provide  for removal  of a Judge on the ground of proved misbehaviour  or inability.  It does not provide for prosecution of  a  Judge for  offences  under section 5(1)(e) of  the  Prevention  of Corruption Act. It is apropos to mention in this  connection that in England, before the full development of  ministerial responsibility,  impeachment was a weapon enabling the  Com- mons to call to account ministers appointed by, and  respon- sible to, the Crown. As the commons acquired direct  control over  ministers, there was no need to employ the  cumbersome machinery  of impeachment and there has been no  impeachment since  1805.  As impeachment of  political  offenders  might involve not only deprivation of office but other  penalties, the royal prerogative of pardon  does not extend to prevent- ing  impeachment  but extends to pardoning  punishments  in- flicted  on an impeachment. In England, offices held  during good behaviour may in the event of misconduct be  determined by  impeachment.  In practice, however, an  address  to  the Crown for the removal of a judge must originate in the House of  Commons;  the  procedure is judicial and  the  judge  is entitled to be heard. There is no instance of the removal of a  judge  by this method since the Act of  Settlement.  This power to remove by impeachment or address, a person  holding office during good behaviour, is an essential counterpart to the  independence secured to the holders of high  office  by making  their  tenure one of good behaviour  instead  of  at pleasure.     Under  Art. II, s. 4, U.S. Constitution, the  President, VicePresident  and ’all civil officers of the United  States can  be removed from office on impeachment for, and  convic- tion  of, "Treason, Bribery or other high Crimes and  misde- meanours".  Since the President of the United States who  is the,  highest executive authority of the State, an  impeach- ment  has been provided for and in fact,  President  Johnson was impeached in 1867 for high crimes and misdemeanours.  In 1917,  Justice Archibald of the Commerce  Court  was’removed from  office by impeachment for soliciting for  himself  and others, favours from railroad companies, some of which  were at  the time litigants in his court; in 1936 the removal  of Judge Wright of the Florida Court for conduct in relation to a receivership Which evoked serious doubts as to this integ- rity, although he was acquitted of specific charges, seem to have restored the wider view. For, in neither case, were the two  judges  found guilty of an indictable offence.  It  has been said that: 225               "As  to  the Judges of the  United  States  at               least  lack  of  ’good  behaviour’  and  ’high               crimes  and misdemeanours’ are overlapping  if               not precisely coincidental concepts." (Seervai’s  Constitutional  Law  of  India,  Third  Edition, Vol.II, page 1698 paras 18.8 and 18.9).     It  has been urged by the Solicitor General as  well  as

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the Additional Solicitor General that the Judges of the High Court  cannot  be said to be exempted  from  prosecution  in respect of offences provided in the Prevention of Corruption Act.  It has been urged further that under Article 361,  the President and the Governor have been given  protection  from being answerable to any court for the exercise and  perform- ance  of the powers and duties of his office or for any  act done  or  purporting to be done by him in the  exercise  and performance of those powers and duties. Clause 2 of the said Article further provides that no criminal proceedings  what- soever  shall be instituted or Continued against the  Presi- dent,  or the Governor of a State, in any court  during  his term  of office. No such immunity from criminal  prosecution has  been  provided for in the case of a Judge of  the  High Court or of the Supreme Court. It has, therefore, been urged that  the High Court should ensure modalities for  launching prosecution against a Judge under the said Act. Undoubtedly, respect  for  the judiciary and its public  credibility  and dignity has to be maintained in order to ensure respect  for the Judges in public and also for the decisions rendered  by the  judges.  It  is, therefore, necessary  to  evolve  some method  commensurate with the grant of sanction in cases  of serious allegation corruption and acquisition or the posses- sion  of  disproportionate  assets which  the  Judge  cannot satisfactorily account for’or possession of property dispro- portionate  to the sources of income of the Judge. If  these things are allowed to go unnoticed it will create a  serious inroad on the dignity respect, and credibility and integrity of the High Office which a Judge of the Supreme Court and of the  High  Court occupies resulting in the  erotion  on  the dignity and respect for the high office of the Judges in the estimation  of  the  public. As has  been  suggested  by  my learned  Brother Shetty, J. that the President is given  the power to appoint the Judges of the Supreme Court as well  as of  the  High Court by warrant under his hand and  seal  and similarly  even  after  passing of an address  by  both  the Houses  of the Parliament in the manner provided in  Article 124, clauses (4) and (5) and placed before the President,  a Judge cannot be removed from his office unless and order  to that  effect  is  passed by the  President.  The  President, therefore,  has the power to appoint as well as to remove  a Judge from his office on the ground of 226  proved  misbehaviour or incapacity as provided  in  Article 124  of the  Constitution. The President,  therefore,  being the  authority competent  to appoint and to remove a  Judge, of  course  in accordance with the  procedure  envisaged  in Article 124, clauses (4) and (5) of the Constitution, may be deemed to be the authority to grant sanction for prosecution of  a Judge under the provisions of Section 6(1)(c)  in  re- spect  of  the offences provided in section 5(1)(e)  of  the Prevention of Corruption  Act, 1947. In order to  adequately protect  a Judge from frivolous prosecution and  unnecessary harassment the President will consult the  Chief Justice  of India who will consider all the materials placed before  him and  tender his advice to the President for giving  sanction to  launch prosecution or for filing FIR against  the  Judge concerned after being satisfied in the matter. The President shall  act  in accordance with advice  given by   the  Chief Justice of India If the Chief Justice of India. If the chief Justices  of opinion that it is not a fit case for grant  of sanction  for prosecution of the Judge concerned the  Presi- dent  shall not accord sanction to prosecute the  Judge;This will save the Judge concerned from unnecessary harassment as weal as from frivolous prosecution against him as  suggested

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by my learned brother Shetty, J. in his judgment.  Similarly in the case of Chief Justice of the Supreme Court the Presi- dent  shall consult such of the Judges of the Supreme  Court as he may deem fit and proper and the President shall act in accordance  with  the advice given to him by  the  Judge  or Judges of the Supreme Court. The purpose of grant of  previ- ous  sanction  before prosecuting a public  servant  i.e.  a Judge  of the High Court or of the Supreme Court is to  pro- tect  the  Judge from unnecessary harassment  and  frivolous prosecution  more  particularly to save the Judge  from  the biased prosecution for giving judgment in a case which  goes against the Government or its officers though’based on  good reasons and rule of law. Mention may be made in this connec- tion  to the decision in C.K. Daphtary v.O.P. Gupta,  A.I.R. 197 1 SC 1132, wherein it has been observed:               "It  seems  to  us that  whoever  drafted  the               Impeachment  Motion drafted it with a view  to               bring  the  facts within the  meaning  of  the               express  "misbehaviour" in Article 124(4)  for               he must have realised that to say that a Judge               has  committed  errors,  even  gross   errors,               cannot amount to "misbehaviour". The  contention that frivolous prosecution can  be  launched against  a Judge for giving a judgment against  the  Central Government or any of its Officers is of no avail in as  much as such decision does not amount to misbehaviour within  the meaning of the Article 124 of the Constitution.            227     It is also necessary to mention in this connection  that the  appellant resigned his post of Chief Justice  when  FIR was lodged by the CBI and so he ceased to be a public  serv- ant  on the date of lodging the FIR against him by the  CBI. The  scope and applicability of section 6 of the  Prevention of Corruption Act came to be considered in the case of  R.S. Nayak v.A.R. Antulay, [1984] 2 SCR 495 before a Constitution Bench of this Court where it has been observed:               "Section  6 bars the Court from taking  cogni-               zance  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  .............  Section  6               creates a bar to the court from taking  cogni-               zance  of offences therein  enumerated  except               with  the previous sanction of  the  authority               set  out in clause (a) (b) & (c)  of  sub-sec.               (I),. 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 unneces-               sary harassment of public servant (C.R.  Bansi               v. State of Maharashtra), [1971] 3 S.C.R. 236.               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 cognizance of such offences,  it               must enquire whether there is a valid sanction               to  prosecute the public servant for  the  of-               fence alleged to have been committed by him as               public  servant. Undoubtedly the accused  must               be  a  public’ servant when he is  alleged  to

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             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  con-               templated 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  sanction where one is  necessary  under               section 6 has been held to be a trial  without               jurisdiction  by  the court.  (R.R.  Chari  v.               State  of  U.P.,  and S.N. Bose  v.  State  of               Bihar), In Mohd. Iqbal Ahmed v. State of A.P.,               it was held that the terminus               228               a  quo for a valid sanction is the  time  when               the court is called upon to take cognizance of               the  offence. 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 considera-               tion ceases to exist." In  the present appeal the appellant ceases to be  a  public servant  as  h. resigned from the office. Therefore  at  the time  of filing the FIR the appellant ceases to be a  public servant  and so no sanction under Sec. 6(1)(c) of  the  said act  is necessary. The main plank of the argument  regarding sanction is, therefore, non-existent.     In  these  circumstances the judgment and order  of  the High  Court dismissing the application under Secll.  482  of the Code of Criminal Procedure is in my considered  opinion, wholly  in accordance with law and as such the Order of  the High  Court has to be upheld in any circumstances.  I  agree with  the  conclusion of my learned brother Shetty,  J.  The appeal is, therefore, dismissed. The trial of Criminal  Case No. 46/77 filed by the Respondent be proceeded with.     K.  JAGANNATHA  SHETTY, J. This  appeal  by  certificate under Articles 132(1) and 134(1)(e) of the Constitution  has been  filed by the former Chief Justice of the  Madras  High Court against the Full Bench decision of the same High Court refusing  to  quash the criminal proceedings  taken  against him. The appeal raises the questions of singular  importance and  consequence to Judges of the High Courts and this  Apex Court.  The  central issue is whether the  Judges  could  be prosecuted  for offence under the Prevention  of  Corruption Act, 1947 (’the Act’).     The  background of the case in the barest outline is  as follows:  The appellant started his life as an  Advocate  in the High Court of Madras. He joined the Madras Bar in  1941. In 1953 he was appointed as Assistant Government Pleader. In 1959 he became Government Pleader. He held that post till 20 February 1960 when he was elevated to the Bench as a  perma- nent Judge of the Madras High Court. On

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229 1  May 1969, he became the Chief Justice of the Madras  High Court.  During his tenure as the Judge and Chief Justice  he was  said  to have acquired assets disproportionate  to  the known  source  of income. The complaint in this  regard  was made  to the Delhi Special Police Establishment ("CBI").  On 24 February 1976, the CBI registered a case against him with issuance  of a First Information Report which was  filed  in one of the Courts at New Delhi. It was alleged in the  First Information  Report  that  taking  into  consideration   the sources  of  income of the appellant as a  Judge  and  Chief Justice  of  the High Court and the mode and  style  of  his living with the probable expenses required during the period of  his  Judgeship/Chief Justiceship, it is  reasonably  be- lieved that the appellant cannot satisfactorily account  fox the  possession of assets which are far disproportion he  to his  known source of income. It was further alleged that  he has committed offences under Section 5(2) read with  clauses (b)(d)  and (e) of Section 5(1) of the Act. On  28  February 1976, a copy of the First Information Report was  personally taken  by  the Investigating Officer to Madras  and  it  was filed before the Court of Special Judge, Madras. The  appel- lant  on coming to know of these developments  proceeded  on leave from 9 March 1976 and subsequently retired on 8  April 1976 on attaining the age of superannuation.     The  investigation of the case by CBI was however,  con- tinued with the culmination of filing a final report. On  15 December  1977, a final report under Section 173(2)  of  the Code of Criminal ’Procedure (Cr. P.C.) was filed against the appellant before the Special Judge, Madras. The report under Section 173(2) is generally called as the charge sheet,  and we  would  also prefer to term it as the charge  sheet.  The charge  sheet  inter alia states that  the  appellant  after assuming.   office as the Chief Justice of Madras  gradually commenced accumulation of disproportionate assets etc.  That for  the period between 1 May 1969 to 24 February  1976,  he was  in possession of the pecuniary resources  and  property disproportionate  by Rs.6.41,416.36 to the known sources  of income  over the same period. It was in his own name and  in the  names of his wife Smt. Eluthai Ammal and his  two  sons Shri    V. Suresh and Shri V. Bhaskar. The appellant  cannot satisfactorily account for such disproportionate assets. The appellant  has  thereby committed the  offence  of  criminal misconduct under clause (e) of Section 5(1) which is punish- able  under Section 5(2) of the Act. The particulars of  the disproportionate  assets  and the income  of  the  appellant during  the aforesaid period have been fully set out in  the charge  sheet.  On  perusing the charge  sheet  the  learned Special Judge appears to have issued process for  appearance of the appellant but the appel- 230    lant  did  not appear there. He moved the High  Court  of Madras  under  Section  482 of the Cr. P.C.  to  quash  that criminal proceedings before the High Court he contended that the proceedings initiated against him were unconstitutional, wholly  without  jurisdiction, illegal and  void.  The  Full Bench  of the High Court by majority view has dismissed  his case.  However, in view of the importance of  the  Constitu- tional  questions  involved    in the case  the  High  Court granted certificate for appeal to this Court.       It  may  be  noted that before the  High  Court  every conceivable  point was argued. They are various and  varied. We  may briefly refer to those contentions not for the  pur- pose  of  examining them, since most of them have  not  been pressed before us, but only to indicate as to how the appel-

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lant  projected his case. It was inter alia, contended  that the Judges of the High Court and Supreme Court shall not  be answerable  before  the ordinary criminal  courts  but  only answerable  to Parliament. The Parliament alone  could  deal with  their  misbehaviour under the provisions  of  Articles 124(4) and (5) read with Articles 217 and 218 of the Consti- tution. The Judge shall hold office until the age of  super- annuation subject to earlier removal for proved misbehaviour or incapacity. This protection to Judges will be defeated if they  are  compelled to stand trial  for  offence  committed while discharging duties of their office even before retire- ment. Even the Parliament or the State Legislatures are  not competent to make laws creating offences in matters relating to  discharge of Judge’s duties. Any such law would  vitiate the  scheme  and the federal structure of  the  Constitution particularly the scheme of Article 124(4) read with  Article 2  17 and 2 18. If the Legislatures are held to have  powers to  create offence for which Judges could be tried in  ordi- nary criminal Courts then, it may affect the very  independ- ence of the Judiciary and the basic structure of the Consti- tution.  Though  the definition of  "public  servant"  under Section  21 of the Indian Penal Code may include a Judge  of the  Higher Judiciary, since the Judge is not  ’employed  in connection  with  the affairs of the Union  or  State’,  the definition Should be narrowed down only to Judges other  man the Judges of the Higher Judiciary.      The  jurisdiction  of  the CBI  to  register  the  case against  the  appellant and to investigate the  offence  was also  questioned.  The  issuance of  the  First  Information RepOrt  and the subsequent filing of the charge  sheet  were impeached. It was alleged that they were actuated by collat- eral considerations. Alternatively, it was claimed that even assuming that all the allegations against the appellant  are true, it will not constitute an offence under clause (e)  of Section 5(1) of the Act since ingredients of the offence are not present in the case. The last and 231   perhaps  the  most important contention urged  before  the High  Court   was regarding the necessity  to  obtain  prior sanction from the competent authority for prosecution of the appellant as required under  Section 6 of the Act. And since there was no such sanction obtained the Court has no  juris- diction to take cognizance of the case.     Mr. Justice Mohan, with whom Mr. Justice Natarajan,  (as he  then was) joined rejected all the contentions in a  well considered  judgment. The views expressed by Mohan,  J.,  on all  the issues except on the last one need not be  set  out here since all those issues have not been raised before  us. On  the  last aspect relating to the  requirement  of  prior sanction  for  prosecution  of the  appellant,  the  learned Judge, held that since the appellant has retired from  serv- ice  and  was no longer a ’public servant’ on  the  date  of filing  the charge sheet, the sanction for  his  prosecution required  under Section 6 of the Act is not  warranted.  The third Judge Mr. Justice Balasubramanyan in a separate  judg- ment  has concurred with the majority views on most  of  the questions.  He has however, differed on three points out  of which  one alone need be mentioned. The other two  have  not been  supported before us by counsel for the appellant.  The learned Judge has dealt with the ingredients of the  offence under  clause (e) of Section 5(1) with which  the  appellant was charged. While analysing ingredients of the offence,  he went  on  to state that the gist of the offence is  not  the possession  of assets merely. Nor even the sheer  excess  of assets over income, but the inability of the public  servant

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in not being able to satisfactorily account for the  excess. He  observed  that  clause (e) of Section 5(1)  of  the  Act places the burden of establishing unsatisfactory  accounting squarely on the prosecution. In order to properly  discharge this  burden cast by the section, it Would be necessary  for the  Investigating  Officer first of all to  call  upon  the public  servant to account for the disproportionate  assets. He must then proceed to record his own finding on the expla- nation  of the public servant. He must state whether  it  is satisfactory  or  not. And the offence complained  of  under clause  (e)  of Section 5(1) is not made  out  without  such exercise  and  finding  by the  Investigating  Officer.  The learned  Judge, however, was careful enough to modulate  his reasoning so that it may be in conformity with the constitu- tional  protection guaranteed to the accused  under  Article 20(3)  of the Constitution, Article 20(3) provides  that  no person  accused  of any offence shall be compelled to  be  a witness against himself. The learned Judge said that in view of  Article 20(3) the Investigating Officer has no power  to compel  the accused to give his explanation for his  dispro- portionate  assets, but he must necessarily ask  the  public servant for an account. 232     In  this  case. the  accused-appellant  has  voluntarily submitted his statement of assets and income to the Investi- gating Officer in the course of investigation. Balasubraman- yan,  J., however, seems to have ignored that statement  and focussed  his attention on the default of the  Investigating Officer in not calling upon the appellant to account for the disproportionate  assets.’  In that view, he held  that  the chargesheet  could not be sustained and accordingly  quashed the prosecution.     Before  us, counsel for the appellant advanced only  two propositions. The first concerns with the ingredients of the offence  alleged  and the requirements of  the  charge-sheet filed against the appellant. It also involves the duties  of the Investigating Officer. In this regard counsel sought  to support  the views expressed by Balasubramanyan, J., in  his dissenting  judgment. The second proposition relates to  the inapplicability of the Act to Judges of the High Courts  and Supreme  Court. The essence of the submissions made on  this aspect is based on the special status and role of Judges  of the  higher judiciary and in the need to safeguard  judicial independence consistent with the constitutional provisions.     We will take up the second question first for considera- tion  because. if it is determined in favour of  the  appel- lant,  the  first becomes academic and wc  may  conveniently leave it out. For a proper consideration of the  submissions made by counsel on both sides the attention may be drawn  to the relevant provisions of the Act.               Section 2 provides:               "2.  For  the purposes of  this  Act,  "public               servant" means a public servant as defined  in               Section 21 of the Indian Penal Code."               Section 4 provides:                    4.   [(1)] Where in any trial of  an  of-               fence punishable under section 16 1 or section               165 of the Indian Penal Code (or of an offence               referred to in clause (a) or clause (b) of sub               section (1) of section 5 of this Act  punisha-               ble  under  subsection  (2)  thereof),  it  is               proved that an accused person has  accepted or               obtained, or has agreed to accept or attempted               to  obtain, for himself or for any other  per-               son,  any  gratification  (other  than   legal

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             remuneration)    or   any    valuable    thing               from  any person, it shall be presumed  unless               the contrary is               233               proved that he accepted or obtained, or agreed               to accept or attempted to obtain, that  grati-               fication  or that valuable thing, as the  case               may  be,  as  a motive or reward  such  as  is               mentioned in the said section 161, or, as  the               case  may be, without consideration or  for  a               consideration which he knows to be inadequate.               (2) Where in any trial of an offence  punisha-               ble  under  section 165A of the  Indian  Penal               Code (or under clause (ii) of sub-section  (3)               of  section 5 of this Act) it is  proved  that               any gratification (other than legal  remunera-               tion) or any valuable thing has been given  or               offered  to be given or attempted to be  given               by  an  accused person, it shall  be  presumed               unless the contrary is proved that he gave  or               offered  to  give or attempted  to  give  that               gratification  or that valuable thing, as  the               case  may be as a motive or reward such as  is               mentioned  in section 161 of the Indian  Penal               Code or, as the case may be  without consider-               ation or for a consideration which he knows to               be inadequate.               (3)  Notwithstanding  anything  contained   in               sub-sections (1) and (2) the court may decline               to draw the presumption referred to in  either               of the said sub-sections, if the gratification               or  thing  aforesaid is, in  its  opinion,  so               trivial  that no inference of  corruption  may               fairly be drawn."                   Two  other  provisions are  more  material               namely section 5 and section 6 and must be set               out in full.               Section 5 provides:               "5(1)  A public servant is said to commit  the               offence of criminal misconduct-               (a)  if  he habitually accepts or  obtains  or               agrees  to accept or attempts to  obtain  from               any  person for himself or for any other  per-               son,  any  gratification  (other  than   legal               remuneration) as a motive or reward such as is               mentioned  in section 161 of the Indian  Penal               Code, or               (b)  if  he habitually accepts or  obtains  or               agrees  to  accept or attempts to  obtain  for               himself or for any other person, any  valuable               thing without consideration or for a con-               234               sideration  which he knows to  be  inadequate,               from any person whom he knows to have been, or               to be, or to be likely to be concerned in  any               proceeding or business transacted or about  to               be transacted by him, or having any connection               with  the official functions of himself or  of               any public servant to whom he is  subordinate,               or from any person whom he knows to be  inter-               ested  in  or related to the  person  so  con-               cerned, or               (c)  if he dishonestly or fraudulent|y  misap-               propriates  or otherwise converts for his  own               use any property entrusted to him or under his

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             control  as  a public servant  or  allows  any               other person so to do, or               (d)  if he, by corrupt or illegal means or  by               otherwise  abusing  his  position  as   public               servant, obtains for himself or for any  other               person any valuable thing or pecuniary  advan-               tage (or)               (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.               (2)  Any public servant who  commits  criminal               misconduct shall be punishable with  imprison-               ment  for a term which shall not be less  than               one  year but which may extend to seven  years               and shall also be liable to fine:                         Provided that the court may, for any               special reasons recorded in writing, impose  a               sentence  of  imprisonment of  less  than  one               year.               (3) Whoever habitually commits-                         (i)  an  offence  punishable   under               section   162  or section 163  of  the  Indian               Penal Code, or                         (ii)  an  offence  punishable  under               section 165 A of the Indian Penal Code,               shall  be punishable with imprisonment  for  a               term which                       235               shall not be less than one year but which  may               extend  to  seven  years, and  shall  also  be               liable to fine:               Provided  that the court may, for any  special               reasons recorded in writing, impose a sentence               of imprisonment of less than one year.               (3A)  Whoever  attempts to commit  an  offence               referred  to  in clause (c) or clause  (d)  of               sub-section  (1)  shall  be  punishable   with               imprisonment  for a term which may  extend  to               three years, or with fine, or with both.               (3B) Where a sentence of fine is imposed under               subsection  (2) or sub-section (3), the  court               in  fixing the amount of fine shall take  into               consideration  the amount or the value of  the               property, if any, which the accused person has               obtained  by committing the offence  or  where               the  conviction is for an offence referred  to               in clause (e) of subsection (1), the pecuniary               resources  or  property referred  to  in  that               clause for which the accused person is  unable               to account satisfactorily.               (4) The provisions of this section shall be in               addition  to,  and not in derogation  of,  any               other  law  for the time being in  force,  and               nothing  contained  herein  shall  exempt  any               public  servant  from  any  proceeding   which               might, apart from this section, be  instituted               against him.               Section 6 is in the following terms:               "6.  No  court  shall take  cognizance  of  an               offence  punishable  under  section  161   (or               section  164)  or section 165  of  the  Indian

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             Penal Code, or under sub-section (2) (or  sub-               section 3A) of section 5 of this Act,  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 the) State 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               236               office  save  by or with the sanction  of  the               Central Government (of the) State Government               (c)  in the case of any 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  re-               quired  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.     It  will be convenient, if at this stage, we  also  read Section  Omitting the immaterial clauses, Section 5A  is  in these terms:               "5A. Notwithstanding anything contained in the               Code  of Criminal Procedure, 1898,  no  police               officer below the rank -               (a)  in the case of the Delhi  Special  Police               Establishment, of an Inspector of Police;               (b)  in the presidency-towns of  Calcutta  and               Madras,  of an Assistant Commissioner  of  Po-               lice;               (c)  in the presidency-towns of Bombay,  of  a               Superintendent of Police; and               (d)  elsewhere, of a Deputy Superintendent  of               Police,               shall investigate any offence punishable under               Section  161, section 165 or section  165A  of               the  Indian Penal Code or under section  5  of               this  Act  without the order of  a  Presidency               Magistrate or a Magistrate of the first class,               as the  case may be, or make any arrest there-               for without a warrant:               Provided  that if a police officer  not  below               the  rank of an Inspector of Police is  autho-               rised  by the State Government in this  behalf               by  general  or  special order,  he  may  also               investigate any such offence without the order               of a Presi-               237               dency Magistrate or a Magistrate of the  first               class,  as  the case may be,  or  make  arrest               therefor without a warrant:               Provided  further that an offence referred  to               in clause (e) of sub-section (1) of Section  5               shall not be investigated without the order of               a  police  officer  not below the  rank  of  a               Superintendent of Police.     The Act was intended to suppress bribery and  corruption

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in  public administration and it contains  stringent  provi- sions.  Section 4 raises presumption unless the contrary  is proved by the accused in respect of offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence  referred to in clause (a) or clause (b) of  section 5(1)  of  the Act. Section 5 of the Act creates  offence  of criminal  misconduct  on the part of a public  servant.  The public servant defined under section 2 means a public  serv- ant  as defined in Section 21 of the IPC. Section 21 of  the IPC is not really defining "public servant" but  enumerating the categories of public servants. It has enumerated as many as  twelve categories of public servants. Section 5(2)  pro- vides punishment for such an offence of criminal  misconduct up to a term of 7 years or with fine, or with both.  Section 6  prohibits  Courts from taking cognizance  of  an  offence unless  certain condition is complied with. We will have  an occasion  to consider the provisions of Section 6 in  detail and  for  the present we may deal only  with  the  condition prescribed by the Section for a Court to take cognizance  of an offence The condition prescribed therein is the  previous sanction of a competent authority. The public servant cannot be  prosecuted for offences specified in the Section  unless there  is prior sanction for prosecution from the  competent authority.  It  may be of importance to  remember  that  the power  to  take cognizance of an offence is  vested  in  the Court  of  competent jurisdiction. Section  6  is  primarily concerned to see that prosecution for the specified offences shall  not  commence  without the sanction  of  a  competent authority.  That does not mean that the Act was intended  to condone  the  offence of bribery. and corruption  by  public servant.  Nor  it was meant to afford protection  to  public servant  from criminal prosecution for such offences. It  is only  to protect the honest public servants  from  frivolous and  vexatious prosecution. The competent authority  has  to examine independently and impartially the material on record to  form  his  own opinion whether the  offence  alleged  is frivolous  or vexatious. The competent authority may  refuse sanction  for  prosecution  if the offence  alleged  has  no material to support or it is frivolous or intended to harass the  honest officer. But he cannot refuse to grant  sanction if the material collected has made out 238 the  commission  of the offence alleged against  the  public servant.  Indeed he is duty bound to grant sanction  if  the material  collected lend credence to the offence  complained of.  There  seems to be another reason for taking  away  the discretion  of the investigating agency to prosecute or  not to  prosecute  a public servant. When a  public  servant  is prosecuted  for an offence which challenges his honesty  and integrity, the issue in such a case is not only between  the prosecutor  and the offender, but the State is also  vitally concerned  with it as it affects the morale of public  serv- ants and also the administrative interest of the State.  The discretion  to prosecute public servant is taken  away  from the prosecuting agency and is vested in the authority  which is  competent  to remove the public servant.  The  authority competent to remove the public servant would be in a  better position than the prosecuting agency to assess the  material collected  in  a  dispassionate and  reasonable  manner  and determine  whether  sanction  for prosecution  of  a  public servant deserves to be granted or not.     Section  6  may now be analysed. Clause (a)  of  Section 6(1) covers public servants employed in connection with  the affairs  of the Union. The prescribed authority  for  giving prior sanction for such persons would be the Central Govern-

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ment.  Clause  (b) of Section 6(1)  covers  public  servants employed  in connection with the affairs of the  State.  The authority  competent to give prior sanction for  prosecution of  such persons would be the State Government. Clauses  (a) and  (b) would thus cover the cases of public  servants  who are employed in connection with the affairs of the Union  or State  and  are not removable from their office save  by  or with  the  sanction of the Central Government or  the  State Government. That is not the end. The Section goes further in clause  (c)  to  cover the remaining  categories  of  public servants.  Clause (c) states that in the case of  any  other person  the sanction would be of the authority competent  to remove him from his office. Section 6 is thus all  embracing bringing within its fold all the categories of public  serv- ants as defined under Section 21 of the IPC.     It is common ground that clauses (a) and (b) of  Section 6(1)  of the Act cannot cover the Judges of the High  Courts and the Supreme Court since they are not employed in connec- tion with the affairs of the Union or State. The question is whether  they could be brought within the purview of  clause (c) of Section 6(1). Mr. Kapil Sibal learned Counsel for the appellant  stressed the need to read clause (c) in  "ejusdem generis" to clauses (a) and (b). According to him the entire Section 6 seems to apply only to such public servants  where there  is relationship of master and servant  between,  them and their employer. 239 If  there is no relationship of master and servant,  as  be- tween  public  servant  and the authority  to  appoint  him, clause (c) has no application to the public servant. So  far as  the Judges of the High Courts and the Supreme Court  are concerned, it was contended that there is no relationship of master  and  servant  between them  and  the  Government.and clause (c) of Section 6(1) is inapplicable to them.     It  is true that the relationship of master and  servant as  is  ordinarily understood in common law does  not  exist between  the Judges of higher judiciary and the  Government. Where there is relationship of master and servant the master would  be  in  commanding position. He has  power  over  the employee not only to direct what work the servant is to  do, but  also  the manner in which the work is to be  done.  The servant undertakes to serve the master and obey the reasona- ble  orders within the scope of his duty. It is implicit  in such relationship that the servant may disobey the  master’s order  only at his peril. But there is no such  relationship between  the Judges and their appointing authority that  is, the Government. The Judges are not bound nor do they  under- take to obey any order of the Government within the scope of their  duties.  Indeed, they are not Judges  if  they  allow themselves to be guided by the Government in the performance of  their duties. In Union of India v. S.H. Sheth, [1978]  1 SCR  423 at 450 Chandrachud, J., as he then was,  has  illu- mined  this idea: "the Judges owe their appointment  to  the Constitution and hold a position of privilege under it. They are  required  to ’uphold the Constitution  and  the  laws’, ’wit-hout  fear’ that is without fear of the Executive;  and ’without favour’ that is without expecting a favour from the Executive.  There is thus a fundamental distinction  between the  master and servant relationship between the  Government and the Judges of High Courts and the Supreme Court." But we cannot  accept the contention urged for the  appellant  that clause  (c) should be read in "ejusdem generis"  to  clauses (a)  and (b) of Section 6(1) of the Act. The application  of the  ejusdem generis rule is only to general word  following words which are less general, or the general word  following

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particular and specific words of the same nature. In such  a case,  the general word or expression is to be read as  com- prehending  only things of the same kind as that  designated by the preceding specific words or expressions. The ’general word is presumed to be restricted to the same genus as those of  the particular and specific words. (See Maxwell  on  The Interpretation  of  Statutes, 12th Ed. p. 297). What  do  we have  here?  Section 21 of the IPC  while  defining  "public servant"  has denoted as many as twelve categories  of  per- sons. It includes not only the State and Central  Government employees but also others like Judge, juryman, assessor 240 and arbitrator. It also includes every person in the service or  pay of the Government or remunerated by fees or  commis- sion  by  the Government. Each category  is  different  from other  and  there is hardly any relationship of  master  and servant in some of the categories. The provisions of clauses (a) and (b) of Section 6(1) of the Act covers certain  cate- gories  of public servants and the ’other’ which  means  re- maining  categories are brought within the scope  of  clause (c).  Clause  (c) is independent of and  separate  from  the preceding  two clauses. The structure oil the  section  does not permit the applicability of the rule of ejusdem generis.     There are, however, two requirements for the applicabil- ity  of clause (c) of Section 6(1) to a Judge of the  higher judiciary.  First, the Judge must be a public servant.  Sec- ond,  there  must be an authority competent  to  remove  the Judge  from his office. If these two requirements  are  com- plied with, a Judge cannot escape from the operation on  the Act. On the first requirement there is little doubt and also not  seriously  disputed by counsel for the  appellant.  His approach  however, is to limit the operation of  clause  (c) only  to Judges of the Subordinate judiciary. But we do  not find  any sustainance in that approach. From the  very  com- mencement  of  the IPC "Every Judge" finds a  place  in  the categories  of "public servant" defined under Section 21  of IPC.  It was specifically denoted in the third  category  of public servant under Section 21 of IPC.     In 1962, the Government of India constituted a Committee chaired by C.K. Santhanam, MP to suggest improvements in the provisions  of  the Act. Nine specific terms  of  references were  made  to the Committee. The Fourth term  of  reference made  to  the Committee reads: "to suggest  changes  in  law which would ensure speedy trial of cases of bribery, corrup- tion  and  criminal misconduct, and make the  law  otherwise more  effective." The Committee collected a lot of  material from the public relating to the nature of corruption in  the administration.  It was represented to the Committee by  the public that corruption has increased to such an extent  that people have started losing faith in the integrity of  public administration.  "We  heard from all sides",  the  Committee reported, "that corruption has, in recent years, spread even to those levels of administration from which it was conspic- uously  absent in the past." (See: Santhanam  Committee  Re- port, paras 2.12,2.15 and 2.16). The Committee submitted its report  on 31st March 1964. While examining the Fourth  term of reference extracted above, the Committee in Section 7  of its report considered the question of amendments to the IPC. The Committee drew particular 241 attention  to the definition of ’public servant’ in  Section 21  of the IPC. Under paragraph 7.6 of the Report, the  Com- mittee has suggested that the present definition of  ’public servant’  under  Section 21 of the IPC requires  to  be  en- larged. It has stated, among others that ’a further category

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should be added to include all persons discharging adjudica- tory  functions  under any Union or State Law for  the  time being  in force.’ Under para 7.7, the Committee  recommended that  the third category under Section 21 of the IPC may  be amended as stated below:               "Third-Every  Judge including any  person  en-               trusted  with  adjudicatory functions  in  the               course of enforcement of any law for the  time               being in force."     This recommendation led to the enactment of Anti Corrup- tion  Laws  (Amendment) Act 1964 (Act No. 40 of  1964),  The Parliament  by passing this enactment has reenacted  Section 21 with the third category as follows:               "21. ’public servant’-The words ’public  serv-               ant’ denote a person falling under any of  the               descriptions hereinafter following, namely;               Third--Every Judge including any person empow-               ered by; law to discharge, whether by  himself               or  as  a member of any body of  persons,  any               adjudicatory functions." It  will be seen that the Parliament has not  only  retained the expression "Every Judge" in the original enumeration  of public servant under Section 21 of the IPC but also enlarged the  expression  to include any person empowered by  law  to discharge any adjudicatory functions. Reference may also  be made to Section 19 of the IPC, in which "Judge" is  defined. Section 19 reads:               "19. "Judge"-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               242               who is one of a body of persons, which body of               persons  is  empowered by law to give  such  a               judgment."     The expression "Every Judge" used in the third  category of  Section  21 indicates all Judges and all Judges  of  all Courts.  It  is a general term and general term in  the  Act should not be narrowly construed. It must receive comprehen- sive  meaning  unless there is positive  indication  to  the contrary. There is no such indication to the contrary in the Act.  A  Judge  of the superior Court  cannot  therefore  be excluded from the definition of public servant. He  squarely falls  within  the purview of the Act  provided  the  second requirement under clause (c) of Section 6(1) is satisfied     The second requirement for attracting the provisions  of clause (c) of Section 6(1) to a Judge of the superior  Judi- ciary  is that for the purpose of granting sanction for  his prosecution,  there must be an authority and  the  authority must  be competent to remove the Judge. It is now  necessary to identify such authority in relation to the higher judici- ary. In our country, the Judges of higher Judiciary are safe and  secure.  They are high dignitaries  and  constitutional functionaries.  They are appointed by the President  in  the exercise of his executive power but they are independent  of the Executive. They hold office till they attain the age  of superannuation.  The High Court Judge retires at  62,  while the Supreme Court Judge retires at 65. They are liable to be removed for proved misbehaviour or incapacity. The Executive is  competent  to appoint the Judges but  not  empowered  to

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remove  them. The power to remove them is vested in  Parlia- ment  by the process analogous to impeachment. The power  is located  under Article 124 of the Constitution. Article  124 provides, so far as material, as follows:               "124.  Establishment and constitution  of  Su-               preme Court-                XXXXX      XXXXX      XXXXX               (4) A Judge of the Supreme Court shall not  be               removed from his office except by an order  of               the President passed after an address by  each               House of Parliament supported by a majority of               the  total membership of that House and  by  a               majority  of not less than two-thirds  of  the               members  of that House present and voting  has               been  presented to the President in  the  same               session  for  such removal on  the  ground  of               proved misbehaviour or incapacity.               243               (5) Parliament may by law regulate the  proce-               dure  for the presentation of an  address  and               for the investigation and proof of the  misbe-               haviour or incapacity of a Judge under  clause               (4).     Article 2 18 provides that the provisions of clauses (4) and  (5)  of Article 124 shall apply in relation to  a  High Court as they apply in relation to the Supreme Court. In exercise of the power vested under clause (5) of  Article 124,  the  Parliament has passed the Judges  (Inquiry)  Act, 1968 prescribing     the procedure for presentation of an address and for the investigation  and proof of misbehaviour or incapacity of  a Judge. It will be useful to refer to the relevant provisions of the Judges (Inquiry) Act, 1968. Section 3(1) provides for giving  notice of a motion for presenting an address to  the President  praying  for the removal of a Judge, (a)  in  the case of a notice of motion given in the House of the People, it should be signed by not less than one hundred members  of that House; (b) in the case of a notice given in the Council of  States, it should be signed by not less than fifty  mem- bers  of that Council. The notice of motion should be  given to  the Speaker or, as the case may be, to the Chairman  who may,  after  consulting such persons, as he thinks  fit  and after  considering such materials, if any, as may be  avail- able to him, either admit the motion or refuse to admit  the same. Section 3(2) states that if the motion referred to  in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall constitute a Committee for making  an investigation  into  the grounds on which the removal  of  a Judge  is  prayed for. There shall be three members  of  the Committee; of whom one shall be chosen from among the  Chief Justice and other Judges of the Supreme Court; one shall  be chosen from among the Chief Justices of the High Courts  and one shall be a person who is, in the opinion of the  Speaker or,  as the case may be, the Chairman, a  distinguished  ju- rist. The section further provides that the Committee  shall frame  definite  charges against the Judge on the  basis  of which the investigation is proposed to be held and the Judge shall  be  given a reasonable opportunity  of  presenting  a written  statement  of defence. There are Rules  called  the Judges  (Inquiry) Rules, 1969 formed under the  Judges  (En- quiry)  Act  prescribing procedure for  holding  an  inquiry against the Judge. Section 4(1) of the Judges (Inquiry) Act, 1968 states that at the conclusion of the investigation, the Committee shall submit its report to the Speaker or, as  the case  may be, to the Chairman, stating therein its  findings

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’on each of the charges separately with such observations on the whole case as he thinks fit. The Speaker or the - 244 Chairman, as the case may be, shall cause that report to  be laid  before the House of People and the Council of  States. Section 6 provides that if the report of Committee  contains a  finding that the Judge is not guilty of any  misbehaviour or  does  not suffer from any incapacity, then,  no  further step be taken in either House of Parliament     Section 6(2) states that if the report of the  Committee contains a finding that the Judge is guilty of any  misbeha- viour  or suffers from any incapacity, then, each  House  of Parliament  shall take further steps. The motion to  present an address to the President together with the report of  the Committee, shall be taken up for consideration by the  House in which it is pending. That address praying for removal  of the  Judge  must be adopted by each House of  Parliament  in accordance with the provisions of clause (4) of Article 124. Clause (4) of Article 124 provides that the address must  be passed  by each House of Parliament supported by a  majority of the total membership of that House and by a majority  ofi not  less  than  two-thirds of the  members  of  that  House present and voting. Thereafter it shall be presented to  the President for removal of the Judge. Incidentally, it may  be mentioned  that the same procedure has been made  applicable for removal of the Comptroller and Auditor-General of India. (See clause (1) of Article 148 and for removal of the  Chief Election Commissioner. (See clause (5) of Article 324 of the Constitution.     Counsel for the appellant while referring to the  afore- mentioned  provisions of the Constitution pointed  out  that the  power  to remove a Judge is not vested  in  any  single individual  or authority. No single person or  authority  is competent  to  take  even cognizance of  any  allegation  of misconduct  of  a  Judge, or to take legal  action  for  his removal.  The power to remove a Judge is vested in  the  two Houses  of  Parliament and the President.  The  process  and power  are  ’both integrated in  Parliament  and  Parliament alone is competent to remove a Judge. But Parliament,  coun- sel  contended, cannot be the sanctioning authority for  the prosecution of a Judge. The grant of sancricrequires consid- eration  of material collected by the  investigation  agency and  Parliament cannot properly consider the material.  Par- liament  is  wholly  unsuitable to that work.  It  would  be reasonable  to presume that the Legislature  while  enacting clause (c) of Section 6(1) of the Act could not have intend- ed  Parliament  to be the sanctioning authority.  The  other authority cannot be involved to grant sanction for  prosecu- tion  of  a Judge since it would be  inconsistent  with  the provisions  of the Act and the Constitutional  requirements. Counsel asserted that it is necessary to exclude the  Judges of the Supreme Court and of 245 the High Courts from the operation of the Act.     Mr. Tulsi, learned Additional Solicitor General, on  the other  hand,  emphasised  on the role of  the  President  in relation  to  removal of a Judge. He pointed  out  that  the order of the President for removal of a Judge is  imperative under clause (4) of Article 124 of the Constitution and  the President could be the proper authority under clause (c)  of Section 6(1) of the Act.     Such,  then,  put quite shortly,  were  the  contentions addressed to us on the authority competent to grant sanction for prosecution of Judges of the superior judiciary.     We agree with counsel for the appellant that  Parliament

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could not have been intended to be the sanctioning authority under clause (c) of Section 6(1). The composition of Parlia- ment consisting of the President and two Houses (Article 79) makes  it unsuitable to the task. The nature of  transacting business or proceeding in each House renders it  impractica- ble.  The  individual Member of the House takes  part  in  a proceeding usually by speech and voting; but the conduct  of Judge  in the discharge of his duties cannot  be  discussed. Article 121 provides "that no discussion shall take place in Parliament  with respect to the conduct of any Judge of  the Supreme  Court or of a High’ Court in the discharge  of  his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as  hereinaf- ter  provided." The only exception made in the  Constitution for discussion on the conduct of a Judge is when the  motion is  taken up for his removal. On no other occasion the  con- duct  of  a Judge in the discharge of duties  could  be  the subject  matter of discussion in the two Houses  of  Parlia- ment. Without discussion, it would be difficult for  Parlia- ment  to make an objective judgment with regard to grant  of sanction for prosecution. Parliament cannot therefore be the proper  authority for granting sanction for the  prosecution of a Judge.     That does not however, follow that the Judges of superi- or Courts are entitled to be excluded from the scope of  the Act as contended for the appellant. That would be  defeating the  object  of the Act. The Act was intended to  cover  all categories  of public servants. The apparent policy  of  the legislation  is to insure a clean public  administration  by weeding  out  corrupt  officials. The Preamble  of  the  Act indicates  that the Act was intended to prevent more  effec- tively  the bribery and corruption by public servants.  This Court  has an occasion to examine the broad outlines of  the Act. Imam. J., in S.A. Venkataraman v. The 246 State,  [1958] SCR 1040 while, analysing the  provisions  of the Act observed (at 1048): "that the provisions of the  Act indicate  that it was intention of the legislature to  treat more  severely  than hitherto corruption on the  part  of  a public servant and not to condone it in any manner whatsoev- er." Reference may also be made to the observations of Subba Rao. J., as he then was, in M. Narayanan v. State of Kerala, [1963] 2 Suppl. SCR 724. The learned Judge said that the Act is a socially useful measure conceived in the public  inter- est  and it should be liberally constured. To quote his  own words (at 729):               "The  Preamble  indicates  that  the  Act  was               passed as it was expedient to make more effec-               tive provisions for the prevention of  bribery               and corruption. The long title as well as  the               preamble  indicate that the Act was passed  to               put down the said social evil i.e. bribery and               corruption  by  public Servant. Bribery  is  a               form of corruption. The fact that in  addition               to the word ’bribery’ the word ’corruption’ is               used  shows that the legislation was  intended               to  combat  also  other evils  in  additon  to               bribery. The existing law. i.e. Penal Code was               found  insufficient  to eradicate or  even  to               control  the growing evil of bribery and  cor-               ruption  corroding the public service  of  our               country.  The provisions broadly  include  the               existing offences under ss. 161 and 165 of the               Indian Penal Code committed by public servants               and  enact a new rule of presumptive  evidence

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             against  the accused. The Act also  creates  a               new  offence  of  criminal      misconduct  by               public  servants  though  to  some  extent  it               overlaps  on  the  pre-existing  offences  and               enacts  a rebuttable presumption  contrary  to               the  well-known principles of Criminal  Juris-               prudence.  It  also  aims  to  protect  honest               public servants from harassment by prescribing               that  the investigation against them could  be               made  only by police officials  of  particular               status  and  by  making the  sanction  of  the               Government  or  other  appropriate  officer  a               pre-condition for their prosecution. As it  is               a socially useful measure conceived in  public               interest, it should be liberally construed  so               as  to bring about the desired object i.e.  to               prevent  corruption among public servants  and               to  prevent  harassment of  the  honest  among               them."         In  Craies  on Statute Law. (6th ed. p. 531)  it  is stated that "the distinction between a strict and a  liberal construction  has almost disappeared    with regard  to  all classes of statutes, so that all statutes, 247 whether penal or not, are now construed by substantially the same rules  .....  They are construed now with reference  to the true meaning and real intention of the Legislature." The construction  which  would promote the  general  legislative purpose  underlying  the  provision in question,  is  to  be preferred to a construction which would not. If the  literal meaning  of  the  legislative language used  would  lead  to results which would defeat the purpose of the Act the  Court would  be justified in disregarding the literal meaning  and adopt a liberal construction which effectuates the object of the  legislature.  Section 6, with which  we  are  concerned indeed,  requires  to be liberally construed. It  is  not  a penal provision but a measure of protection to public  serv- ants  in the penal enactment. It indicates  the  authorities without whose sanction a public servant cannot be  prosecut- ed. It is sufficient that the authorities prescribed  there- under  fall  within the fair sense of the  language  of  the Section. The expression "the authority competent to  remove" used  in  clause (c) of Section 6(1) is to be  construed  to mean  also an authority without whose order  or  affirmation the  public  servant cannot be removed. In  this  view,  the President can be considered as the authority to grant  sanc- tion  for  prosecution  of a Judge since the  order  of  the President  for  the  removal of a Judge  is  mandatory,  The motion  passed by each House of Parliament with the  special procedure  prescribed under clause (4) of Article  124  will not  proprio vigore operate against the judge. It  will  not have  the consequence of removing the Judge from the  office unless it is followed by an order of the President.     The importance of an order of the President for  removal of  a Judge could be seen by contrasting the  provisions  of clause (4) of Article 124 with the provisions for removal of the  President, VicePresident and Speaker. Article  61  pro- vides  procedure  for  removal of the  President  of  India. Clause (4) of Article 61 reads as follows:               "61(4)  If as a result of the investigation  a               resolution is passed by a majority of not less               than two-thirds of the total membership of the               House by which the charge was investigated  or               caused to be investigated, declaring that  the               charge  preferred  against the  President  has

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             been sustained, such resolution shall have the               effect  of  removing the  President  from  his               office  as from the date on which the  resolu-               tion is so passed."     Similar is the consequence of passing the resolution for removal  of  the  Vice-President under Article  67  and  the Speaker under Article 248 94  of the Constitution. Article 67(b) of  the  Constitution provides  that  the Vice-President may be removed  from  his office by a resolution of the Council of States passed by  a majority  of all the then members of the Council and  agreed to  by the House of People. Article 94(c) provides that  the Speaker  may be removed from his office by a  resolution  of the House of the People passed by a majority of all the then members  of the House. The resolution passed  in  accordance with  the procedure prescribed under the  respective  provi- sions  for  removing the President, Vice-President  and  the Speaker, will ipso facto operate against those  authorities. No further order from any other authority for their  removal is necessary.     But that is not the position in the case of removal of a Judge.  Clause  (4) of Article 124 mandates  that  "a  Judge shall  not be removed from his office except by an order  of the  President  passed  after an address by  each  House  of Parliament ..." The clause (4) is in the negative terms. The order  of  the President is sine qua non for  removal  of  a Judge. The President alone could make that order.     It  is said that Section 6 envisages that the  authority competent to remove a public servant from the office  should be vertically superior in the hierarchy in which the  office exists.  Section  6 applies only in cases where there  is  a vertical hierarchy of public offices and the public servants against whom sanction is sought from the sanctioning author- ity.  Where the office held by the public servant is  not  a part  of vertical hierarchy in which there is  an  authority above the public servant, then, Section 6 can have no appli- cation.  We have been referred to the observations of  Desai J., in R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 at 206:               "That competent authority alone would know the               nature  and function 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               compete..  to remove the public  servant  from               that office and the nature of the office  held               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." 249     With the utmost respect, we are unable to agree with the above  observations. It seems to us that these  observations were  not  intended to lay down the law that  the  authority competent to grant sanction for prosecution of public  serv- ant should be vertically superior in the hierarchy in  which the  office of the public servant exists. That was  not  the issue  in  that case. The observations  therefore,  are  not meant to be and ought not to be regarded as laying down  the

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law.  It  has  been said almost too  frequently  to  require repetition that judgments are not to be read as statutes. In our opinion, it is not necessary that the authority   compe- tent  to  give  sanction for prosecution  or  the  authority competent to remove the public servant should be  vertically superior in the hierarchy in which the, office of the public servant exists. There is no such requirement under  Section, 6.  The power to give sanction for prosecution can  be  con- ferred  on any authority. Such authority may be of  the  de- partment  in which the public servant is working or an  out- side  authority. All that is required is that the  authority must  be in a position to appreciate the material  collected against the public servant to judge whether the  prosecution contemplated is frivolous or speculative   Under our  enact- ment the power has been conferred on the authority competent to  remove the public servant. Under the British  Prevention of Corruption Act, 1906 the power to give consent for prose- cution for an offence under that Act has been conferred upon the Attorney General or Solicitor General.     The  President  is not an outsider so far  judiciary  is concerned.  The  President appoints the Judges of  the  High Courts  and the Supreme Court in exercise of  his  executive powers. Clause (1) of Article 217 provides that every  Judge of the High Court shall be appointed by the President  after consultation  with the Chief Justice of India, the  Governor of  the  State, and in the case of appointment  of  a  Judge Other than the Chief Justice, the Chief Justice of the  High Court.  Similarly the President appoints the Judges  of  the Supreme Court. Clause (2) of Article 124 provides that every Judge  of the Supreme Court shah be appointed by the  Presi- dent in consultation with such of the Judges of the  supreme Court  and  of  the High Courts as the  President  may  deem necessary  for the purpose and in case of appointment  of  a Judge  other  than  the Chief  Justice,  the  Chief  Justice of/India shall always be consulted. The President  exercises this power with the aid and advice of his Council of  Minis- ters under Article 74 of the Constitution. Shamsher Singh v. State of Punjab, [ 1975] 1 SCR 8 14 and S.P. Gupta v.  Union of  India, [1982] 2 SCR 365. Parliament has no part to  play in  the  matter  of appointment of Judges  except  that  the Executive is responsible to the Parliament. 250     In  the  event of President regarded  as  the  authority competent  to give prior sanction for the prosecution  of  a Judge, counsel for the appellant contended, that the  Presi- dent  cannot act independently. The President exercises  his powers  by and with the advice of his Council of  Ministers. The  Executive may misuse the power by interfering with  the judiciary.  The  Court shall avoid interpretation  which  is likely to impair the independence of the judiciary.  Counsel urged  that  a separate Parliamentary law to deal  with  the criminal misconduct of Judges of superior courts  consistent with  the constitutional scheme for their removal  could  be enacted  and such a legislation alone would ensure  judicial independence and not the present enactment. A suggestion was also  made  that since ’misbehaviour’ under  clause  (4)  of Article  124 of the Constitution and  ’criminal  misconduct’ under Section 5(1)of the Act being synonymous, the constitu- tional process for removal of the Judge must be gone through first  and only after his removal the   prosecution if  need be  recommended in the same process. Otherwise, it  is  said that it would lead to anomaly since there is no power either in the Constitution or under any other enactment to  suspend the Judge or refuse to assign work to the Judge pending  his trial or conviction in the Criminal Court and the Judge  can

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insist on his right to continue till his removal even  after his conviction and sentence.     It  is inappropriate to state that conviction  and  sen- tence  are no bar for the Judge to sit in the Court. We  may make  it clear that if a Judge is convicted for the  offence of criminal misconduct or any other offence involving  moral turpitude,  it  is but proper for him to keep  himself  away from  the Court. He must voluntarily withdraw from  judicial work  and await the outcome of the criminal prosecution.  If he  is  sentenced  in a criminal case  he  should  forthwith tender his resignation unless he obtains stay of his convic- tion  and sentence. He shall not insist on his right to  sit on  the Bench till he is cleared from the charge by a  Court of competent jurisdiction. The judiciary has no power of the purse  or the sword. It survives only by  public  confidence and it iS important to the stability of the society that the confidence  of  the public is not shaken.  The  Judge  whose character  is clouded and whose      standards  of  morality and  rectitude are in doubt may not have the judicial  inde- pendence  and may not command confidence of the  public.  He must voluntarily withdraw from the judicial work and  admin- istration.      The emphasis on this point should not appear  superflu- ous Prof. Jackson says "Misbehaviour by a Judge, whether  it takes place on the bench or off the bench, undermines public confidence  in the administration of justice, and also  dam- ages public respect for the law of the 251 land;  if  nothing is seen to be done about it,  the  damage goes  unrepaired. This must be so when the judge  commits  a serious criminal offence and remains in office".  (Jackson’s Machinery of Justice by J.R. Spencer 8th ed. p.p. 369-370)     The proved "misbehaviour" which is the basis for removal of a Judge under clause (4) of Article 124 of the  Constitu- tion may also in certain cases involve an offence of  crimi- nal misconduct under section S(1) of the Act. But that is no ground  for withholding criminal prosecution till the  Judge is  removed  by Parliament as suggested by counsel  for  the appellant.  One is the power of Parliament and the other  is the  jurisdiction  of a Criminal Court.  Both  are  mutually exclusive. "Even a Government servant who is answerable  for his  misconduct which may also constitute an  offence  under the IPC or under Section 5 of the Act is liable to be prose- cuted  in addition to a departmental enquiry. If  prosecuted in  a criminal court he may be punished by way of  imprison- ment  or fine or with both but in departmental enquiry,  the highest  penalty that could be imposed on him is  dismissal. The competent authority may either allow the prosecution  to go  on  in a Court of law or subject him to  a  departmental enquiry or subject him to both concurrently or  consecutive- ly. It is not objectionable to initiate criminal proceedings against  public servant before exhausting  the  disciplinary proceedings, and a fortiori, the prosecution of a JUdge  for criminal  misconduct  before his removal by  Parliament  for proved misbehaviour is unobjectionable.     There  are  various protections afforded  to  Judges  to preserve  the independence of the judiciary. They have  pro- tection from civil liability for any act done or ordered  to be done by them in discharge of their judicial duty  whether or not such judicial duty is performed within the limits  of their  jurisdiction. That has been provided under Section  1 of  the  Judicial Officers Protection Act,  1850.  Likewise, Section 77 IPC gives them protection from criminal liability for  an  act performed judicially. Section  77  states  that ?nothing is an offence which is done by a Judge when  acting

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judicially  in the exercise of any power which is, or  which in  good  faith he believes to be, given to him by  law".  A discussion  on the conduct of Judges of the High Courts  and the SUpreme Court in the discharge of their duties shall not take  place  in  the State  Legislatures  or  in  Parliament (Articles  12  1 and 211). The High Courts and  the  Supreme Court  have  been constituted as Courts of record  with  the power  to punish anybody for committing contempt.  (Articles 129 and 215). The Contempt of Courts Act, 1971 (Act  7-0-71) provides  power  to  the Court to take  civil  and  criminal contempt proceedings. 252 But  we know of no law providing protection for Judges  from Criminal  prosecution. Article 361(2) confers immunity  from criminal prosecution only to the President and Governors  of States and to no others. Even that immunity has been limited during  their  term of office. The Judges are liable  to  be dealt with just the same way as any other person in  respect of criminal offence. It is only in taking of bribes or  with regard to the offence of corruption the sanction for  crimi- nal prosecution is required.     The position in other countries seems to be not  differ- ent.  In the book "Judicial  Independence--The  Contemporary Debate"  by S. Shetreet and J. Deschenes ’(1985 ed.)  -there is an article titled as "Who watches the Watchman" by  Mauro Cappelletti. The author has surveyed the penal liability  of judges  in the legal systems of some of the  countries.  The author states. In a number of national systems one can  also find the provision of criminal sanctions for certain acts or omissions  that  are typical only of the  administration  of Justice,  such  as deni de justice, or wilful abuse  of  the judicial  office.  Even  crimes which are  of  more  general application,  such  as the taking of bribes, might  well  be sanctioned  differently--but  possibly  more  severely--when they refer" to judicial officers. In other countries, howev- er,  such as Poland, Greece and Italy, a different  approach prevails. There is no criminal sanction which is specifical- ly applicable only to judicial behaviour; rather, the judges are included in those criminal provisions which apply gener- ally  to  public  servants, such  as  provisions  concerning corruption,  omission  or refusal to perform  activities  of office, vexation, etc."      If  we take the early English law it will be seen  that the corruption on the part of a Judge was the most reprehen- sible crime and punishable as high treason. Even Lord Becon, the  most gifted mind of the English Renaissance,  acclaimed philosopher and the best legal brain was not spared from the punishment for accepting bribes. He was fined forty thousand pounds, a monumental sum, and imprisoned in the Tower during the King’s pleasure." He was also barred forever from  hold- ing  any office in the "State or Commonwealth" or from  sit- ting in      Parliament, or from coming "within the verge of the  Court." King James however, liberated him from  prison, remitted  his fine, and pardon him fully (The Corrupt  Judge by Joseph Borkin 1962 ed. p. 3, 4.& 17).      There is however, apprehension that the Executive being the largest litigant is likely to misuse the power to prose- cute the Judges. 253 That apprehension in our over-litigious society seems to  be not  unjustified  or unfounded. The Act  no  doubt  provides certain  safeguards. Section 6 providing for prior  sanction from  the  competent authority and directing that  no  court shall  take  cognizance of the offence  under  Section  5(1) without  such  prior  sanction is indeed  a  protection  for

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Judges  from  frivolous and malicious prosecution. It  is  a settled  law that the authority entitled to  grant  sanction must  apply  its mind to the facts of the case and  all  the evidence  collected  before forming an  opinion  whether  to grant  sanction or not. Secondly, the trial is by the  Court which is independent of the Executive. But these  safeguards may  not be adequate. Any complaint against a Judge and  its investigation by the CBI, if given publicity will have a far reaching  impact on the Judge and the litigant  public.  The need therefore, is a dicious use of taking action under  the Act.  Care should be taken that  nonest and fearless  judges are  not harassed. They should be protected. In the  instant case  the then Chief Justice of India was requested to  give his  opinion whether the appellant could be proceeded  under the  Act. It was only after the Chief Justice expressed  his views that the appellant could be proceeded under the provi- sions  of the Act, the case was registered against him.  Mr. Tulsi,  learned Additional Solicitor General submitted  that he  has no objection for this Court for issuing a  direction against the Government of India to follow that procedure  in every case. But Counsel for the appellant has  reservations. He maintained that it would be for the State to come forward with u separate enactment for the Judges consistent with the Constitutional provisions for safeguarding the  independence of the judiciary and not for this Court to improve upon  the defective law. In our opinion, there is no need for a  sepa- rate  legislation for the Judges. The Act is  not  basically defective  in  its  application to judiciary.  All  that  is required is to lay down certain guidelines lest the Act  may be misused. This Court being the ultimate guardian of rights of  people and independence of the judiciary will  not  deny itself the opportunity to lay down such guidelines. We  must never  forget  that  this Court is not a  Court  of  limited jurisdiction  of  only  dispute settling.  Almost  from  the beginning,  this  Court  has been a law  maker,  albeit,  in Holmes’s  expression. ’interstitial law maker’. Indeed,  the court’s  role  today is much more. It  is  expanding  beyond dispute settling and interstitial law making. It is a  prob- lem solver in the nebulous areas. In this case, we  consider it no were opportunity: it is a duty. It is our responsibil- ity and duty to apply the existing law in a form more condu- cive to the independence of the Judiciary. The Chief Justice of India is a participatory functionary in the 254 matter of appointment of Judges of the Supreme Court and the High Courts. (Articles 124(2) and 2 17(1).) Even for  trans- fer  of  a Judge from one High Court to  another  the  Chief Justice  should  be  consulted by  the  President  of  India (Article  222).  If any questionarises as to the  age  of  a Judge  of a High Court,the question shall be decided by  the President after consultation with the Chief Justice of India (Article 217(3)). Secondly, the Chief Justice being the head of  the judiciary is primarily concerned with the  integrity and  impartiality  of the judiciary. Hence it  is  necessary that  the  Chief  Justice of India is not kept  out  of  the picture  of any criminal case contemplated against a  Judge. He would be in a better position to give his opinion in  the case and consultation with the Chief Justice of India  would be of immense assistance to the Government in coming to  the right conclusion. We therefore, direct that no criminal case shall  be  registered under Section 154, Cr. P.  C.  against Judge  of  the High Court, Chief Justice of  High  Court  or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by  the

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Government to the opinion expressed by the Chief Justice. If the  Chief Justice is of opinion that it is not a  fit  case for  proceeding under the Act, the case shall not be  regis- tered.  If the Chief Justice of India himself is the  person against  whom  the allegations of  criminal  misconduct  are received  the  Government shall consult any other  Judge  or Judges of the Supreme Court. There shall be similar  consul- tation  at the stage of examining the question  of  granting sanction  for  prosecution  and it shall  be  necessary  and appropriate  that the question of sanction be guided by  and in accordance with the advice of the Chief Justice of India. Accordingly the directions shall go to the Government. These directions, in our opinion, would allay the apprehension  of all  concerned that the Act is likely to be misused  by  the Executive for collateral purpose.     For the reasons which we have endeavoured to outline and subject  to  the  directions issued, we hold  that  for  the purpose of clause (c) of Section 6(1) of the Act the  Presi- dent  of India is the authority competent to  give  previous sanction for the prosecution of a Judge of the Supreme Court and of the High Court.     It  remains  only to deal with one short point  in  this part  of  the discussion. The High Court has  expressed  the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the  serv- ice  on  attaining the age of superannuation and was  not  a public  servant on the date of filing the  chargesheet.  The view taken by the High Court appears to be unassailable. The scope  of  Section 6 was first considered by this  Court  in S.A. Venkatararnan’s 255 case, where it was observed (at 1048) that Section 6 of  the Act  must be considered with reference to the words used  in the  section independent of any construction which may  have been  placed by the decisions on the words used  in  Section 197  of the Cr. P.C. The Court after analysing the terms  of Section further observed (at 1049) that "there is nothing in the words used in Section 6(1) to even remotely suggest that previous  sanction was necessary before a court  could  take cognizance of the offences mentioned therein in the case  of a  person who had ceased to be a public servant at the  time the  court  was asked to take_ cognizance, although  he  had been  such a person at the time the offence was  committed." This view has been followed in C.R. Bansi v. State of  Maha- rashtra,  [1971] 3 SCR 236 and also in K.S.  Dharmadatan  v. Central  Government  & Ors., [1979] 3 SCR  832  and  finally reiterated in a Constitution Bench decision in R.S. Nayak  & Ors.  v.A.R.  Antulay,  1984] 2 SCC 183.  The  question  is, therefore, no longer res integra.     This  brings  us to the end of the second  question  and takes  us  on to the first question. Among  the  substantive points raised for the. appellant, the first question relates to  the  nature of the offence created under clause  (e)  of Section  5(1).  The second, allied question, is  as  to  the invalidity of the charge-sheet filed in the instant case  in as such as it failed to incorporate the essential ingredient of  the  offence. It was urged that the  public  servant  is entitled to an opportunity to explain the disproportionality between  the  assets and the known sources of  income.  This opportunity  should  be given to the public servant  by  the Investigating  Officer and the charge sheet must  contain  a statement to that effect, that is, to the unsatisfactory way of accounting by the public servant. Unless the charge sheet contains such an averment, counsel contended that under  law an  offence under clause (e) of Section 5(1) of the  Act  is

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not made out.     For  a proper consideration of the contentions,  we  may have  the pre-natal history of clause (e) of  Section  5(1). Section  5(1) of the Act, as originally stood,  provides  in the  four  clauses  (a), (b), (c) and (d) the  acts  or  the omissions of which public servant is said to have  committed an  offence of criminal misconduct in the discharge  of  his duties. All these provisions are still there except the term ’in  the  discharge  of his duties’.  There  then  followed, Section 5(3) which was in these terms:                          "  In any trial of an offence  pun-               ishable  under sub-section (2) the  fact  that               the accused person or any other person on  his               behalf is in possession, for which the accused               person   cannot  satisfactorily  account,   of               pecuniary resources or property               256               disproportionate  to  his  known  sources   of               income  may be proved, and on such  proof  the               court  shall presume, unless the  contrary  is               proved,  that the accused person is guilty  of               criminal  misconduct in the discharge  of  his               official  duty  and  his  conviction  therefor               shall not be invalid by reason only that it is               based solely on such presumption." ’     This Section 5(3) does not create a new offence but only provides an additional mode of proving an offence punishable under  Section 5(2) for which any accused person  was  being tried. It enables the Court to raise a presumption of  guilt of  the  accused in certain circumstances.  This  additional mode is by proving the extent of the pecuniary resources  or property  in  the  possession of the accused  or  any  other person  on  his behalf and thereafter showing that  this  is disproportionate  to his known sources of income.  If  these facts  are  proved the section makes it obligatory  for  the Court to presume that the accused person is guilty of crimi- nal misconduct in the discharge of his official duty, unless the  contrary  is proved by the accused that he  is  not  so guilty.  The Section 5(3) further provides that the  convic- tion  for  an offence of criminal misconduct  shall  not  be invalid  by reason that it is based solely on such  presump- tion. (See: (i) C.S.D. Swamy v. The State, [1960] 1 SCR 461; (ii) Surajpal Singh v. The State of U.P., [961] 2 SCR 97  1, and (iii) Sajjan Singh v. The State of Punjab, [1964] 4  SCR 630.   In     1962, as earlier explained, Santhanam Committee  on ’Prevention of Corruption’ was constituted to review,  among other  things,  the law relating to  corruption,  to  ensure speedy trial of cases of bribery and criminal misconduct and to  make the law otherwise more effective. The Committee  in its  report  has, inter alia recommended  the  inclusion  of clause  (e) of Section 5(1) as a substantive offence in  the Act. The Government accepted that recommendation and to give effect to that recommendation, enacted clause (e) of Section 5(1)  replacing  Section 5(3) of the Act. The  Statement  of Objects  and  Reasons accompanying the Bill leading  to  the enactment of ’The AntiCorruption Laws (Amendment) Act,  1964 (Act No. 40 of 1964) by which clause (e) of Section 5(1) was introduced into the Act reads:                        The   Committee  has  recommended   a               number of important amendments to the  Preven-               tion of Corruption Act, 1947. It has suggested               that the presumption enunciated in sub-section               (1) and (2) of Section 4 of the Act should  be               made  available  also in respect  of  offences

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             under               257               Section  5 and possession of  disproportionate               assets should be made a substantive offence."               (Emphasis supplied)     For  immediate reference, clause (e) of Section 5(1)  is reproduced hereunder:               " 5(1)(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".     The  terms  of clause (e) indicates that  the  principle underlying  section 5(3) appears to have been elevated to  a substantive  offence  in somewhat different words.  We  will presently  analyse  the  ingredients of  the  offence  under clause (e), but before that, two decisions of this Court  on the  scope of clause (e) may be referred. In Maharashtra  v. K.K.S.  Ramaswamy, [1978] 1 SCR 274, Shinghal, J., said  (at 276) that the result of the enactment of clause (e) is  that mere  possession of pecuniary resources or property  dispro- portionate to the known sources of income of a public  serv- ant,  for which he could not satisfactorily account,  became an  offence  by itself although Section 5(3)  which  existed prior to Section 5(1)(e) did not constitute an offence.     In  State of Maharashtra v. Wasudeo Ramachandra  Kaidal- war,  [1981] 3 SCR 675, Sen, J., spelled out  succintly  the insight of clause (e) of Section 5(1) (at pp. 682 to 684):               "The  terms  and expressions appearing  in  s.               5(1)(e) of the Act are the same as those  used               in  the  old section 5(3).  Although  the  two               provisions  operate in two  different  fields,               the meaning to be assigned to them must be the               same. The expression "known sources of income"               means  "sources known to the prosecution".  So               also  the  same meaning must be given  to  the               words "for which the public servant is  unable               to  satisfactorily  account" occurring  in  s.               5(1)(e).  No doubt s. 4(1) provides  for  pre-               sumption  of guilt in cases falling under  ss.               5(1)(a)  and (b), but there was, in our  opin-               ion,  no need to mention s.  5(1)(a)  therein.               For  the  reason  is  obvious.  The  provision               contained in s. 5(1)(e) of the Act is a  self-               contained  provision.  The first part  of  the               Section casts a burden on the prosecution  and               the second               258               on the accused. When s. 5(1)(e) uses the words               "for  which  the public servant is  unable  to               satisfactorily  account", it is  implied  that               the  burden is on such public servant  to  ac-               count  for the sources for the acquisition  of               disproportionate   assets.  The  High   Court,               therefore,  was  in error in  holding  that  a               public  servant charged for having  dispropor-               tionate assets in the possession for which  he               cannot   satisfactorily  account,  cannot   be               convicted  of  an offence under s.  5(2)  read               with s. 5(1)(e) of the Act unless the prosecu-               tion   disproves  all  possible   sources   of               income."     On the burden of proof under Section 5(1)(e) of the Act,

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learned Judge said:               "The  expression  "burden of  proof"  has  two               distinct  meanings; (1) the legal burden  i.e.               the burden of establishing the guilt, and  (2)               the  evidentia1  burden, i.e.  the  burden  of               leading  evidence.  In a criminal  trial,  the               burden  of  proving  everything  essential  to               establish the charge against the accused  lies               upon  the prosecution, and that  burden  never               shifts.  Not,/withstanding  the  general  rule               that the burden of proof lies exclusively upon               the  prosecution,  in the case  of  certain  c               fences,  the  burden of proving  a  particular               fact  in  issue may be laid by  law  upon  the               accused. The burden resting on the accused  in               such cases is, however, not so onerous as that               which  lies  on the prosecution  and  is  dis-               charged  by proof of a balance  of  probabili-               ties." As to the ingredients of the offence, learned Judge  contin- ued:               "The  ingredients of the offence  of  criminal               misconduct under s. 5(2) read with s.  5(1)(e)               are  the possession of pecuniary resources  or               property disproportionate to the known sources               of income for which the public servant  cannot               satisfactorily  account. To  substantiate  the               charge, the prosecution must prove the follow-               ing facts before it can bring a case under  s.               5(1)(e), namely, (1)it must establish that the               accused  is a public servant, (2)  the  nature               and  extend  of  the  pecuniary  resources  or               property  which were found in his  possession,               (3)  it  must be proved as to  what  were  his               known  sources  of income i.e. known  to  the,               prosecution,  and  (4)  it  must  prove  quite               objectively,  that such resources or  property               found in possession of the accused               259               were disproportionate to his known sources  of               income. Once these four ingredients are estab-               lished,  the  offence of  criminal  misconduct               under  s.  5(1)(e)  is  complete,  unless  the               accused is able to account for such  resources               or  proper"   The burden then  shifts  to  the               accused  to  satisfaction.   account  for  his               possession  of  disproportionate  assets.  The               extent  and nature of burden of proof  resting               upon the public servant to be found in posses-               sion  of  disproportionate  assets  under   s.               5(1)(c) cannot be higher than the test laid by               the  Court in Jahgan’s case (supra),  i.e.  to               establish  his  case  by  a  preponderance  of               probability.  That test was laid down  by  the               Court following the dictum of Viscount Sankey,               L.C.  in  Woolmington v.  Director  of  Public               prosecutions."     The  soundness of the reasoning in  Wasudeo  Ramachandra Kaidalwar  case  (supra) has been doubted. Counsel  for  the appellant  urged that the view taken on Section 5(3)  cannot be imported to clause (e) of Section 5(1) and the  decision, therefore,  requires  reconsideration. But we do  not  think that  the decision requires reconsideration. It is  signifi- cant to note that there is useful parallel found in  Section 5(3)  and clause (e) of Section 5(1). Clause (e)  creates  a

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statutory  offence which must be proved by the  prosecution. It  is for the prosecution to prove that the accused or  any person  on his behalf, has been in possession  of  pecuniary resources or property disproportionate to his known  sources of income. When that onus is discharged by the  prosecution, it  is  for the accused to account  satisfactorily  for  the disproportionality  of the properties possessed by him.  The Section  makes  available statutory defence  which  must  be proved  by the accused. It is a restricted defence  that  is accorded to the accused to account for the disproportionali- ty  of the assets over the income. But the legal  burden  of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt  on the prosecution version. The Legislature has advisedly  used the  expression "satisfactorily account". The emphasis  must be on the word "satisfactorily". That means the accused  has to  satisfy  the  court that his explanation  is  worthy  of acceptance. The burden of proof placed on the accused is  an evidential  burden though not a pursuasive burden.  The  ac- cused however, could discharge that burden of proof "on  the balance  of probabilities" either from the evidence  of  the prosecution and/or evidence from the defence. This  procedure may be contrary to the well known  principle of 260 criminal jurisprudence laid down in Woolmington v.  Director of  Public Prosecution, [1935] A.C. 462 that  the  burden-of proof  is always on the prosecution and never shifts to  the accused  person.  But Parliament is competent to  place  the burden on certain aspects on the accused as well and partic- ularly in matters "specially within his knowledge". (Section 106  of  the Evidence Act). Adroitly, as observed  in  Swamy case  (at 469) and reiterated in Wasudeo case (at 683),  the prosecution cannot, in the very nature of things, be expect- ed to know the affairs of a public servant found in  posses- sion of resources of property disproportionate to his  known sources of income. It is for him to explain. Such a  statute placing  burden on the accused cannot be regarded as  unrea- sonable,  unjust or unfair. Nor it can be regarded  as  con- trary to Article 21 of the Constitution as contended for the appellant. It may be noted that the principle re-affirmed in Woolmington  case is not a universal rule to be followed  in every  case.  The  principle is applied in  the  absence  of statutory  provision to the contrary. (See the  observations of Lord Templeman and Lord Griffiths in Rig. v. Hunt, [1986] 3 WLR 1115 at 1118 and 1129).     Counsel for the appellant however, submitted that  there is no law prohibiting a public servant having in his posses- sion assets disproportionate to his known sources of  income and  such possession becomes an offence of criminal  miscon- duct  only  when the accused is unable to  account  for  it. Counsel  seems to be focussing too much only on one part  of clause (e) of Section 5(1). The first part of clause (e)  of Section 5(1) as seen earlier relates to the proof of  assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income the offence of criminal  miscon- duct  is  attributed to the public servant. However,  it  is open  to  the public servant to satisfactorily  account  for such disproportionality of assets. But that is not the  same thing  to  state that there is no offence  till  the  public servant is able to account for the excess of assets. If  one possesses assets beyond his legitimate means, it goes  with- out  saying  that the excess is out of illgotten  gain.  The assets  are not drawn like nitrogen from the air. It has  to

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be  acquired  for which means are necessary. It is  for  the public servant to prove the source of income or the means by which  he  acquired  the assets. That is  the  substance  of clause (e) of Section 5(1).     In  the view that we have taken as to the nature of  the offence created under clause (e), it may not be necessary to examine  the  contention relating to ingredient of  the  of- fence.  But since the legality of the charge sheet has  been impeached, we will deal with that contention 261 also.  Counsel  laid great emphasis on the  expression  "for which he account satisfactorily account" used in clause  (e) of  Section 5(1) of the Act. He argued that that term  means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged  dispropor- tionality  between assets and the known sources  of  income. The Investigating Officer is required to consider his expla- nation  and the charge sheet filed by him must contain  such averment.  The  failure to mention  that  requirement  would vitiate  the charge sheet and renders it invalid. This  sub- mission,  if we may say so, completely overlooks the  powers of  the Investigating Officer. The Investigating Officer  is only  required to collect material to find out  whether  the offence  alleged  appears  to have been  committed.  In  the course of the investigation, he may examine the accused.  He may  seek  his clarification and if necessary he  may  cross check with him about his known sources of income and  assets possessed  by  him. Indeed, fair investigation  requires  as rightly  stated by Mr. A.D. Giri learned Solicitor  General, that  the accused should not be kept in darkness. He  should be taken into confidence if he is willing to cooperate.  But to state that after collection of all material the  investi- gating  Officer must give an opportunity to the accused  and call  upon idm to account for the excess of the assets  over the  known  sources of income and then  decide  whether  the accounting  is satisfactory or not, would be  elevating  the Investigating Officer to the position of an enquiry  officer or  a  judge. The investigating officer is  not  holding  an enquiry against the conduct of the public servant or  deter- mining the disputed issues regarding the  disproportionality between  the assets and the income of the accused.  He  just collects material from all sides and prepares a report which he files in the Court as charge sheet.     The charge sheet is nothing but a final report of police officer  under  Section 173(2) of the Cr. P.C.  The  Section 173(2) provides that on completion of the investigation  the police officer investigating into a cognizable offence shall submit  a report. The report must be in the form  prescribed by the State Government and stating therein (a) the names of the  parties;  (b) the nature of the  information;  (c)  the names  of the persons who appear to be acquainted  with  the circumstances  of the case; (d) whether any offence  appears to  have been committed and, if so, by whom (e) whether  the accused has been arrested; (f) whether he had been  released on  his bond and, if so, whether with or  without  sureties; and (g) whether he has been. forwarded in custody under Sec. 170.  As observed by this Court in Satya Narain  Musadi  and Ors.  v. State of Bihar, [1980] 3 SCC 152 at 157;  that  the statutory  requirement  of the report under  Section  173(2) would be complied 262 with if the various details prescribed therein are  included in  the report. This report is an intimation to  the  magis- trate that upon investigation into a cognizable offence  the investigating  officer has been able to  procure  sufficient

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evidence  for the Court to inquire into the offence and  the necessary  information is being sent to the Court. In  fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned  he has  been able to procure sufficient material for the  trial of the accused by the Court. The report is complete if it is accompanied  with all the documents and statements  of  wit- nesses  as required by Section 175(5). Nothing more need  be stated  in  the report’of the Investigating Officer.  It  is also not necessary that all the details of the offence  must be  stated.  The details of the offence are required  to  be proved  to  bring home the guilt to the accused at  a  later stage i.e. in the course of the trial of the case  "adducing acceptable evidence.     In  the instant case, the charge sheet contains all  the requirements of Section 173(2). It states that the  investi- gation  shows that between 1 May 1969 and 24  February  1976 the  appellant  as the Chief Justice of the  High  Court  of Madras  was  in possession of the  pecuniary  resources  and property in his own name and in the name of his wife and two sons etc., which were disproportionate by Rs.6,41,416.36  to the known sources of income over the same period and  cannot satisfactorily  account for such disproportionate  pecuniary resources and property. The details of properties and  pecu- niary  resources of the appellant also have been set out  in clear  terms.  No. more, in our opinion, is required  to  be stated  in the charge sheet. It is fully in accordance  with the  terms  of  Section 173(2) Cr. P.C. and  clause  (e)  of Section 5(1) of the Act.     For  the  foregoing reasons, we dismiss the  appeal  and direct the trial court to proceed with the case expeditious- ly.     Before  parting with the case, we may say a  word  more. This  case  has given us much concern. We gave  our  fullest consideration to the questions raised. We have examined  and re-examined the questions before reaching the conclusion. We consider that the society’s demand for honesty in a judge is exacting and absolute. The standards of judicial  behaviour, both on and off the Bench, are normally extremely high.  For a Judge to deviate from such standards of honesty and impar- tiality is to betray the trust reposed on him. No excuse  or no  legal  relativity can condone such  betrayal.  From  the standpoint  of  justice the size of the bribe  or  scope  of corruption  cannot  be  the scale for  measuring  a  judge’s dishonour. A single dishonest judge not only dis- 263 honours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.      A judicial scandal has always been regarded as far more deplorable than a scandal involving either the Executive  or a  member of the Legislature. The slightest hint of  irregu- larity  or  impropriety in the Court is a  cause  for  great anxiety and alarm. "A legislator or an administrator may  be found  guilty of corruption without  apparently  endangering the  foundation of the State. But a Judge must keep  himself absolutely above suspicion" to preserve the impartiality and independence of the judiciary. and to have the public confi- dence thereof.      SHARMA, J. I have gone through the learned judgments of Mr. Justice Ray, Mr. Justice Shetty and Mr. Justice Verma. I agree  with Mr. Justice Ray and Mr. Justice Shetty that  the appeal should be dismissed. In view of the elaborate discus- sion  of  the facts and law in the judgments of  my  learned brothers, I am refraining from dealing with them in  detail, and am indicating my reasons briefly.

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   2.  The expression "public servant" used in the  Preven- tion of Corruption Act, 1947 (hereinafter referred to as the ’Act’)  is  undoubtedly wide enough to denote  every  judge, including  Judges of the High Court and the  Supreme  Court. The  argument  is that in view of the language  of  the  Act considered  along  with the provisions of  the  Constitution especially Article 124, Section 5 of the Act must be held to be inapplicable to the High Court and Supreme Court  Judges. It  has not, however, been suggested, and rightly, that  the Parliament lacks jurisdiction in passing a law for trial and conviction  of High Court and Supreme Court Judges in  cases where  they are guilty of committing criminal offences.  The contention  is  that  in view of the scheme of  the  Act  it should  be inferred that the penal provisions of the Act  do not apply to them. Great reliance has been placed on Section 6, requiring previous sanction of the authority competent to remove  the Judge’ from the office as a necessary  condition for  taking cognizance. It has  been urged that in  view  of this  essential requirement it has to be held that  the  Act does not cover the case of a member of the higher  judiciary while in office and consequently it cannot be made  applica- ble  to  him even after his retirement. For the  purpose  of this  argument  it is presumed that there  is  no  authority competent  to  remove  a High Court Judge  from  his  office within the meaning of Section 6, and the condition precedent for starting a prosecution against him, therefore, cannot be satisfied. I do not think this basic assumption is correct. 264     3.  Section 6(1)(c) of the Act speaks of the  "authority competent to remove him from his office". The question is as to  whether there is some "authority competent" to remove  a High  Court Judge from his office or not. An answer  in  the negative will be inconsistent with Article 124 Clauses 4 and 5 read with Article 2 18 of the Constitution. It is signifi- cant to note that Article 124(4) speaks of "removal from his office", and Section 6 of the Act uses similar language. The removal  of  a Judge does not take .place  automatically  on commission  or  omission of a particular act or acts  or  on fulfilment of certain prescribed conditions. It is dependant on  certain  steps to be taken as mentioned)in  the  Article through human agency. Initially some members 9f the  Parlia- ment have to move in the matter and finally an order has  to be  passed  by the President. Thus although  more  than  one person are involved in the process, it is not permissible to say  that no authority exists for the purpose of  exercising the  power to remove a High Court Judge from his office.  As to who is precisely the authority in this regard is a matter which,  in my view, does not arise in the present case,  but the  vital question whether such an authority exists at  all must be answered in the affirmative.     4.  It  has  been strenuously contended  by  Mr.  Sibal, learned  counsel  for the appellant, that  the  Constitution envisages an independent judiciary, and to achieve this goal it is essential that the other limbs of the State  including the  executive and the lagislature should be denied a  posi- tion from where the judiciary can be pressurized.      5.  The  State is an organisation committed  to  public good;  it  is not an end in itself. Its  different  branches including  the legislature, judiciary and the executive  are intended to perform different assigned important  functions. Judiciary has a duty to dispense justice between person  and person  as also between person and State itself. To be  able to  perform  its duties effectively the Judges have  to  act "without fear or favour, affection or ill will". They  must, therefore,  be free from pressure from any  quarter.  Nobody

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can  deny this basic essence of independence  of  judiciary. But for the judiciary to be really effective, the purity  in the  administration  of justice and the  confidence  of  the people in the courts are equally essential. It is to achieve this end that the higher judiciary has been vested with  the power to punish for its own contempt. This has become neces- sary so that an aggrieved or misdirected person may not cast aspersions  on  the  court which may  adversely  affect  the public  confidence. If the community loses its faith in  the courts, their very existence will cease to have any meaning. A person with a just cause shall not approach the court  for a legal 265 remedy, if according to his belief the decision of the court would  be given on extreneous consideration and not  on  the merits  of his claim. People will return to the law  of  the jungle  for  settling their dispute on  the  streets.  These aspects are common for the entire judiciary, whether  Higher or Subordinate, and to my mind no classification is  permis- sible separating one category from another.     6.  Although the Judges of the higher judiciary  perform important  functions and are vested with  special  jurisdic- tion,  at cannot be forgotten that judicial power,  wherever it is vested, is integral and basic for a democratic consti- tution.  A large number of cases are finally decided at  the stage of the subordinate judiciary. The subordinate  judici- ary,  therefore, also needs the same independence  which  is essential  for the higher judiciary. It is,  therefore,  not safe to assume that the Act intended to make in its applica- tion  any  discrimination between the lower and  the  higher judiciary.  Protection to the public servant in  general  is provided under Article 311 and the interest of the  subordi- nate  judiciary is further taken care of by the High  Court, and this along with the provisions regarding previous  sanc- tion  shields them from unjustified  prosecution.  Similarly protection is available to the High Court and Supreme  Court Judges  through the provisions of Article 124(4) and (5)  of the  Constitution. So far this aspect is concerned, the  two categories of Judges--High Court and Supreme Court Judges on the one hand and the rest on the other have not been treated by the law differently. There cannot be any rational  ground on the basis of which a member of a higher judiciary may  be allowed  to  escape prosecution while in  identical  circum- stances  a member of the subordinate judiciary is tried  and convicted.  Such an interpretation of the Act will  militate against  its constitutional validity and should not,  there- fore, be preferred.     7.  There  is still another reason indicating  that  the interpretation  suggested on behalf of the appellant  should not  be accepted. If it is held that a member of the  higher judiciary is not liable to prosecution for an offence  under Section 5 on account of the requirement of previous sanction under Section 6, it will follow that he will be immune from’ the  prosecution  not only under Section 5(1)(e) as  is  the present case, but also for the other offences under  Clauses (a)  to (d). So far offences punishable under Sections  161, 164 and 165 of the Indian Penal Code are concerned they  are also  subject to such-previous sanction. The result will  be serious.  It is a well established principle that no  person is  above  the law and even a  constitutional  amendment  as contained in Article 329 A in the case of the Prime Minister was struck 266 down in 1976 (2) SCR 347 at 470 C-D. It has to be remembered that in a proceeding under Article 124 a Judge can merely be

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removed  from  his office. He cannot be convicted  and  pun- ished. Let us take a case where there is a positive  finding recorded in such a proceeding that the Judge was  habitually accepting  bribe, and on that ground he is removed from  his office.  On the argument of Mr. Sibal, the matter will  have to be closed with his removal and he will escape the  crimi- nal  liability  and even the ill gotten money would  not  be confiscated.  Let  us consider another  situation  where  an abetter  is found guilty under Section 165 A of  the  Indian Penal  Code and is convicted. The main -culprit,  the  Judge shall  escape on the argument of the appellant. In  a  civi- lised  society  the law cannot be assumed to be  leading  to such disturbing results.     8. In adopting the other view I do not see any difficul- ty  created either by the scheme or the language of the  Act or by any constitutional provision. The statement in Santha- nam  Committee’s  report that the members did  not  consider judiciary  to be included in the terms of the reference,  is not  of much help as admittedly the Act applies to the  mem- bers of the subordinate judiciary. Nor can the rules  relat- ing to disclosure by some Govt. servants of their assets and liabilities  determine  the scope of the  law.  These  rules differ from place to place and are amended from time to time according  to  the changing exigencies. As has  been  stated earlier,  the  power to remove a High Court Judge  from  his office  does  exist and has to be exercised  in  appropriate circumstances according to the provisions of Article 124. It is,  therefore, not right to say that previous sanction  for his  prosecution cannot be made available. Section 2 of  the Act  adopts the definition of "public servant" as  given  in Section  21 of the Indian Penal Code, which includes  "Every Judge". If the legislature had intended to exclude the  High Court  and Supreme Court Judges from the field of Section  5 of  the  Act,  it could have said so  in  unambiguous  terms instead  of  adopting  the wide meaning  of  the  expression "public servant" as given in the Indian Penal Code.      9.  The  further  question as to the  identity  of  the authority  empowered  to  grant the  necessary  sanction  as mentioned  in Section 6 of the Act was hotly debated  during the  hearing of the case. Mr. Justice Shetty has  held  that since  ultimately it is the order of the President which  is necessary for the removal of a Judge, he must be treated  to be  the competent authority. Taking into  consideration  the independence of judiciary as envisaged by the  Constitution, it has further been observed that the Chief Justice of India will have to be 267 consulted in the matter and steps would have to be taken  in accordance with his advice. Mr. Justice Ray and Mr.  Justice Venkatchaliah are in agreement with this view. These  obser- vations,  I believe, would be not only acceptable, but  wel- come to the Union of India, as during the hearing it was  at the  suggestion  of the learned Solicitor  General  and  the Additional  Solicitor General, that the desirability of  the aforesaid  direction in the judgment was considered  by  the Bench. I also fully appreciate that if the executive follows this rule strictly, a further protection from harassment  of the judges by uncalled for and unjustified criminal prosecu- tion  shall  be  available. But in my view  such  a  binding direction cannot be issued by this Court on the basis of the provisions of the Constitution and the Act.     10.  Before proceeding further 1 would again state  that having  answered the question as to whether a Judge  of  the superior  court can be removed by some authority whoever  he or  they may be, in the affirmative, it is not necessary  to

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decide the further controversy as mentioned above. I  would, therefore,  be  content  merely by indicating  some  of  the aspects  which may be relevant for the issue, to be  decided later in a case when it directly arises.     11.  If  the  President is held to  be  the  appropriate authority  to  grant the sanction without reference  to  the Parliament, he will be bound by the advice, he receives from the Council of Ministers. This will seriously jeopardise the independence  of  judiciary  which is  undoubtedly  a  basic feature of the Constitution. Realising the serious  implica- tion  it was suggested on behalf of the Union of India  that this Court may lay down suitable conditions by way of  prior approval  of  the  Chief Justice of India  for  launching  a prosecution.  I  fully appreciate the concern of all  of  us including the Union of India for arriving at a  satisfactory solution of the different problems which are arising, but if we start supplementing the law as it stands now, we will  be encroaching upon the legislative field. To meet this  objec- tion it was contended that it is permissible for us to issue the  suggested direction because the Chief Justice of  India is not a stranger in the matter of appointment of a Judge of the High Court or the Supreme Court; rather he is very  much in  the  picture. Reference was made to  the  provisions  of Articles  124-(2) and 2 17(1). The difficulty  in  accepting this  argument  is that the Governor of the  State  and  the Chief Justice of the High Court are as much involved in  the matter  of appointment of a Judge of the High Court  as  the Chief  Justice of India. We cannot, therefore, simplify  the problem  by referring to the aforesaid Articles. In my  view the approval of Chief Justice of India can be introduced 268 as  a condition for prosecution only by the  Parliament  and not by this Court.     12. The question, then, is as to what is the  protection available under the law as it exists today, to the independ- ence  of  the  judiciary of the country. The  answer  is  in Section 6 of the Act, which by providing for previous  sanc- tion  of the authority empowered to remove the Judge,  takes us to Article 124, Clauses (4) and (5). Since the  Constitu- tion  itself  has considered it adequate in  the  matter  of dealing  with  serious  accusations against  the  Judges  by incorporating  the  provisions  of Clauses (4)  and  (5)  in Article  124,  they must be treated to  be  appropriate  and suitable; and should be resorted to in the matter of  prose- cution also, in view of the Parliament enacting Section 6 of the  Act in the language which attracts  the  constitutional provisions.     13. It has been argued that in view of the constitution- al  prohibition  against any discussion in  Parliament  with respect  to  the conduct of a Judge of the  superior  court, except in connection with his removal under Article 124,  it will  not  be possible to obtain the necessary  sanction  as mentioned  in Section 6 of the Act, except by  initiating  a motion for removal also simultaneously; and then, it will be a time consuming process. I will assume the contention to be correct, but for that reason I do not think that the correct interpretation of the legal position can be discorrected, as it  does  not  lead to any  illegal  consequence,  untenable position  or an absurd result. It is true that the grant  of sanction  will be delayed until the accusation  is  examined according  to  the law enacted under Clause (5)  of  Article 124,  but once that stage is over and a finding is  recorded against the Judge, there should not be any hitch in  combin- ing  the two matters--that is the removal and the  grant  of sanction--which   are  obviously  intertwined.  It  has   to

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be remembered that the prosecution under Section 5(1) of the Act refers to collection by the Judge of  disproportionately large  amount  of wealth during the period he  has  been  in office. The two matters--the prosecution and removal--should not,  therefore, be treated to be  separate and  unconnected with each other. Otherwise, there will be scope left for the Judge  concerned  to claim that although he  may  be  facing prosecution or may have been even convicted after trial,  he still  continues  to  be a Judge entitled  to  exercise  his powers,  as he has not been removed from his office. It  was stated during the course of the hearing that actually such a situation  has arisen in another country where a  Judge  al- though  punished  with imprisonment was  insisting  that  he still  continued in his office. I do not think that  such  a thing  is permissible in this country. The anomaly  involved in such situations 269 can be satisfactorily resolved by combining the two  matters and  getting clearance from the Parliament.  Before  closing this  chapter  I would again repeat that this issue  is  not arising  in the present case and will have to be  considered and  finally  decided only when it directly  arises.  Since, however,  opinions have been expressed. which I regret I  do not find myself in a position to share. I have, with  great- est  respect  of my learned brothers, taken the  liberty  to state  some  important considerations, which  appear  to  be relevant to me.     14.  Mr. Sibal next contended that as the appellant  was not called upon to account for the property which was  found in  his possession, one of the essential  ingredients  under Section 5(1)(e) is not satisfied. There is no merit  whatso- ever in this point either. The section does not  contemplate a notice to be served on the accused. If the prosecuting  at hority  after  making  a suitable enquiry,  by  taking  into account  the  relevant documents  and  questioning  relevant persons, forms the opinion that the accused cannot satisfac- torily  account the accumulation of disproportionate  wealth in  his  possession the section is  attracted.  The  records clearly indicate that after duly taking all the  appropriate steps it was stated that the assets found in the  possession of the appellant in his own name and in the name of his wife and  two sons, were disproportionate by a sum of  over  Rs.6 lacs  to  his known sources of income  during  the  relevant period and which he "cannot satisfactorily account".     15.  Since I do not find any merit in any of the  points urged on behalf of the appellant this appeal is dismissed.     VERMA,  J.  I have perused the opinions  of  my  learned brethren constituting the majority taking the view that  the Prevention  of Corruption Act applies. I am unable  to  sub- scribe  to this view. My dissenting opinion is at best  only academic. All the same I deem it fit to record the same with my reasons for taking a different view. It is indeed  unfor- tunate  that this question should at all arise for  judicial determination.  However, the question having arisen  we  are bound  to give our opinion. In view of the  significance  of the  point, I record my respectful dissent reassured by  the observations  of  Hughes  that ’unanimity  which  is  merely formal,  which  is recorded at the expense of  strong,  con- flicting views, is not desirable in a court of last  resort, whatever  may be the effect on public opinion at  the  time. This is so because what must ultimately sustain the court in public  confidence is the character and independence of  the judges  ......  It is better that their independence  should be maintained and recognised than that 270

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unanimity  should be secured through its sacrifice. I  would rather  b.e a conscientious lone dissenter than  a  troubled conformist. It is in this spirit, in all humility, I  record my dissent.     Can  the  Chief Justice of a High Court or  any  of  its puisne Judges be prosecuted for an offence punishable  under the Prevention of Corruption Act, 1947 (hereinafter referred to  as  ’the Act’)? This is the main  question  arising  for decision  in  this appeal. The appellant, K.  Veeraswami,  a former  Chief  Justice  of the Madras High  Court  filed  an application under Section 482 of the Code of Criminal Proce- dure,  1973  (Criminal M.P. No. 265 of 1978)  to  quash  the proceedings  in  C.C.  No. 46 of 1977 in the  Court  of  the Special Judge, Madras, initiated on a charge-sheet  accusing him  of  the offence of criminal  misconduct  under  Section 5(1)(e) punishable under Section 5(2) of the Act, as amended by the Amendment Act of 1964. The matter was heard by a full bench  of the High Court which dismissed the application  by order dated 27.4. 1979 according to the majority opinion  of Natarajan and Mohan, JJ. while Balasubrahmanyan, J. dissent- ed.  This  appeal is by a certificate granted  by  the  High Court  under Articles 132(1) and 134(1)(c) of the  Constitu- tion  of  India  in view of the important  question  of  law involved for decision.       The material facts are only a few. The appellant joined the Bar of Madras in the year 1941 and had a lucrative prac- tice.  In  1953  he was appointed  as  Assistant  Government Pleader  and in 1959, the Government Pleader at  Madras.  On 20.2.1960,  he was elevated to the Bench of the Madras  High Court being appointed as a permanent Judge of that Court. On 1.5. 1969, he was appointed the Chief Justice of the  Madras High  Court,  from which office he retired on  7.4.1976.  On 24.2.  1976,  the Central Bureau of Investigation  at  Delhi registered a case against the appellant under the Act and on 28.2.1976, the First Information Report was lodged  accusing the  appellannt of the offence of criminal misconduct  under Section 5(1)(e) punishable under Section 5(2) of the Act.  A charge-sheet  dated 15.12.1977 was filed alleging  that  be- tween  1.5. 1969. and 24.2. 1976, while the appellant was  a public servant, he was in possession of pecuniary  resources and  property in his own name and in the names of  his  wife Smt. Eluthai Ammal and his two sons S/Shri V. Suresh and  V. Bhaskar,  which  were  disproportionate  to  the  extent  of Rs.6,41,416.36p. to his known sources of income during  that period  and that he cannot satisfactorily account  for  such disproportionate  pecuniary  resources  and  property.   The charge sheet also gave particulars on the basis of which the disproportion in assets was alleged. 271      The  appellant filed a petition under Section  482  Cr. P.C. in the High Court for quashing the prosecution  pending in the Court of Special Judge, Madras, on the above  charge- sheet,  with the result indicated above.  Several  arguments including  the allegation of mala fides against the  Central Government were advanced in the High Court on behalf of  the appellant.  It is, however, unnecessary to refer to  all  of them  since  at  the hearing of the appeal  before  us,  the appellant’s  case  was confined only to the  grounds  stated hereafter  and the ground of mala fides alleged in the  High Court  was  expressly given up at the hearing before  us  by Shri Kapil Sibal, learned counsel for the appellant.     Shri  Kapil  Sibal, learned counsel  for  the  appellant advanced  two arguments only. His first contention  is  that the Judges of the High Courts and the Supreme Court are  not within the purview of the Act, which is a special  enactment

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applicable to public servants, in whose case prosecution can be  launched after sanction granted under Section 6  of  the Act,  which is alien to the scheme envisaged  for  constitu- tional  functionaries  like Judges of the  High  Courts  and Supreme Court. He argued that the special provisions in  the Constitution  of  India relating to the Judges of  the  High Courts and the Supreme Court clearly indicate that they  are not  within  the  purview of the Act and  that  after  their appointment in the manner prescribed, they are wholly immune from  executive influence, their tenure being fixed  by  the Constitution, except for removal in the manner prescribed by Article 124(4). The other argument of Shri Sibal is that one of  the  essential ingredients of the  offence  of  criminal misconduct, defined in Section 5(1)(e) of the Act, which  is punishable  under Section 5(2) thereof, is the inability  of the  accused  to satisfactorily account  for  possession  of disproportionate  assets,  which must be  evident  from  the documents annexed to the charge-sheet to enable the  Special Judge  to  take cognizance of the offence and  this  can  be possible  only if the accused is asked to give  his  account before  filing  of the charge-sheet. On this basis,  it  was argued  that the procedure for grant of sanction under  Sec- tion  6 of the Act which requires the sanctioning  authority to see the explanation of the public servant before granting sanction, makes it feasible, which also shows its inapplica- bility  to  the superior Judges, in whose case there  is  no such  service  record or machinery provided. In a  way,  the second  argument  of Shri Sibal also is connected  with  his first  argument. Shri Sibal argued that irrespective of  the desirability of enacting a law providing for the prosecution and  trial  of  superior Judges accused of  the  offence  of criminal  misconduct, the existing law contained in the  Act is  inapplicable  to them. In reply, the  learned  Solicitor General, 272 who was followed by the learned Additional Solicitor  Gener- al, strenuously urged that the Judges of the High Courts and the  Supreme Court also fall within the purview of  the  Act being ’public servants’, which definition is wide enough  to include ’every Judge’. They argued that there is no immunity to  the superior Judges as in the case of the President  and the  Governor  under Article 36 1 of the  Constitution  and, therefore, there was no reason to exclude to superior Judges from  the  purview of the Act. The  difficulty  of  sanction under  Section 6 for the prosecution of superior Judges  and the  special provisions contained in clauses (4) and (5)  of Article  124 read with Article 2 18, it was suggested,  pre- sented  no difficulty since the President of India could  be treated  as  the competent authority to  grant  sanction  in accordance.  with Section 6(1)(c) of the Act in the case  of the High Court and Supreme Court Judges. The learned Solici- tor General and the Additional Solicitor General also  urged that  adequate safeguards in the form of guidelines be  sug- gested  by  this  Court to prevent any  abuse  of  executive authority  or harassment to independent Judges. It was  sug- gested  that some machinery involving the Chief  Justice  of India for grant of sanction for prosecution by the President of India, even for investigation into the offence, could  be suggested  by  this  Court for implicit  compliance  by  the executive. It was argued that in this manner preservation of independence of the judiciary could be ensured while  treat- ing  the superior Judges also within the purview of the  Act to  enable  the prosecution and punishment  of  the  corrupt ones.     In view of the great significance of the point  involved

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for decision which has arisen for the first time, the matter was  heard  at considerable length to  illuminate  the  grey areas. At the hearing the consensus was that, this  unfortu- nate  controversy not envisaged earlier, having now  arisen, may be, it is time that a clear provision be made within the constitutional  scheme  to provide for a machinery  to  deal with  the corrupt members of the superior  judiciary,  which itself is necessary for preservation of the independence  of the judiciary. However, the difference is with regard to the adequacy  of machinery enacted in the  existing  legislation for  this purpose. In other words, the difference  is  about the  law as it is and not about what it should be.  For  the purpose of deciding this case, we have to see the law as  it now exists.     The  main point for consideration is whether  the  Chief Justices and puisne Judges of the High Courts are within the purview of the Act. It is implicit that if the answer is  in the  affirmative, then the Chief Justice and Judges  of  the Supreme Court also would fall within the purview of the  Act and so also the Comptroller and Auditor Genera- 273 and the Chief Election Commissioner, whose terms and  condi- tions  of  office are the same as those of a  Judge  of  the Supreme  Court of India. If for any reason  the  Comptroller and  Auditor General and the Chief Election Commissioner  be considered outside the purview of the Act, that would itself indicate  exclusion of certain similar constitutional  func- tionaries  from the purview of the Act. The  real  question, therefore,  is: Whether these  constitutional  functionaries were  intended to be included in the definition  of  ’public servant’,  as defined in the Act, and the  existing  enacted law  is to that effect. The desirability of enacting such  a law  applicable  to them, it was strenuously  urged  at  the hearing,  would be a matter primarily for the Parliament  to consider in case the existing law as enacted does not  apply to them. There is no material to indicate that corruption in judiciary was a mischief to be cured when the Prevention  of Corruption Act was enacted. For this  reason, the desirabil- ity  now expressed of having such a law cannot be an aid  to construction  of  the existing law to widen  its  ambit  and bring  these  constitutional functionaries within  it  since such  an exercise would be wholly impermissible in the  garb of judicial craftmanship which cannot replace legislation in a  vergin field. Judicial activism can supply the  deficien- cies  and fill gaps in an already existing  structure  found deficient in some ways, but it must stop sort of building  a new edifice where there is none. In a case like the present, the  only answer can be a definite ’yes’ or  definite  ’no’, but not ’yes’ with the addition of the legislative  require- ments  in the enactment which are wholly absent and  without which  the  answer cannot be ’yes’. In  my  considered  view laying down guidelines to be implicitly obeyed, if they find no place in the existing enactment and to bring the superior Judges within the purview of the existing law on that basis, would  amount to enacting a . new law outside the  scope  of the  existing law and not merely construing it by  supplying the  deficiencies  to  make it workable  for  achieving  the object  of  its enactment. It was suggested at  the  hearing that  the guidelines so suggested and supplied with the  aid of which the existing law could be made applicable to  supe- rior Judges would be akin to the  exercise performed by this Court while dealing with the Administrative Tribunals Act in S.P.  Sam path Kumar v. Union of India & Ors., [1987] 1  SCC 124.  I  am afraid this analogy is not apt  there  being  no similarity in the two situations. The Administrative  Tribu-

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nals Act as enacted was found to suffer from certain infirm- ities  which would render it invalid and thereby failing  to achieve the object of its enactment unless the  deficiencies therein  were  supplied. It was to overcome  this  situation that  this Court in Sam path Kumar suggested ways and  means to  overcome  those  infirmities to achieve  the  object  of enactment of that legislation and thereby make the  legisla- tion workable as a 274 valid  piece of legislation. The situation here is  entirely different.  The Act is wholly workable in its existing  form for  the public servants within its purview and there is  no impediment  in  its  applicability to the  large  number  of public  servants  who have been dealt with  thereunder  ever since its enactment. The only question which now arises  is: Whether  this piece of legislation also applies  to  certain constitutional  functionaries such as the High Court  Judges and if the answer is in the negative, the life of the enact- ment  is not jeopardised in any manner. The only  result  is that in case such a legislation for superior Judges also  is considered  necessary at this point of time, the  Parliament can  perform its function by enacting suitable  legislation, it  being a virgin field of legislation. It  is,  therefore, difficult  to appreciate such an argument when the  question for our decision is only of construction of the  legislation as enacted to determine the field of its operation.     Reference  may now be made to certain  statutory  provi- sions on the basis of which the point has to be decided. The definition  of  ’public servant’ given in the  Act  includes ’every  Judge’.  Sub-section  (1) of Section 5  of  the  Act defines  ’criminal  misconduct’ in its several  clauses  and Sub-section  (2) thereof prescribes punishment for  the  of- fence of criminal misconduct. Section 5A deals with investi- gation into cases under this Act and Section 6 is the provi- sion for previous sanction necessary for prosecution.  Thus, no  Court  shall take cognizance of  an  offence  punishable under  Sub-section (2) of Section 5 of the Act  except  with the  previous sanction of the competent authority  envisaged by clauses (a), (b) and (c) of Sub-section (1) of Section  6 of  the  Act. It is for this reason that Section  6  assumes significance for the applicability of the Act since previous sanction for prosecution is necessary for taking  cognizance of  an offence under Section 5(2) of the Act and  in  situa- tions  where  no  such sanction can be  envisaged,  the  Act cannot  be made applicable. The relevant provisions  of  the Act  as in existence after the 1964 amendment are quoted  as under:               "2.  Interpretation.--For the purposes of this               Act, "public  servant" means a public  servant               as  defined in Section 21 of the Indian  Penal               Code (45 of 1860).                XXX        XXX           XXX                        4.  Presumption where public  servant               accepts  gratification other than legal  remu-               neration.--(1)  Where in any trial of  an  of-               fence punishable under Section 16 1 or Section               165  of the Indian Penal Code (45 of 1860)  or               of an offence               275               referred  to  in clause (a) or clause  (b)  of               sub-section  (1)  of  Section 5  of  this  Act               punishable  under sub-section (2) thereof,  it               is proved that an accused person has  accepted               or  obtained,  or as agreed to accept  or  at-               tempted  to  obtain, for himself  or  for  any

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             other  person, any gratification  (other  than               legal remuneration) or any valuable thing from               any  person, it shall be presumed  unless  the               contrary  is  proved that he accepted  or  ob-               tained,  or agreed to accept or  attempted  to               obtain  that  gratification or  that  valuable               thing as the case may be as a motive or reward               such as is mentioned in the said Section  161,               or, as the case may be, without  consideration               or  for a consideration which he knows  to  be               inadequate.                   (2)  Where  in  any trial  of  an  offence               punishable  under Section 165A of  the  Indian               Penal  Code (45 of 1860) or under clause  (ii)               or  sub-section (3) of Section 5 of this  Act,               it  is  proved that any  gratification  (other               than legal remuneration) or any valuable thing               has  been  given  or offered to  be  given  or               attempted to be given by an accused person, it               shall  be  presumed  unless  the  contrary  is               proved  that  he gave or offered  to  give  or               attempted  to give that gratification or  that               valuable thing as the case may be as a  motive               or reward Such as is mentioned in Section  161               of  the Indian Penal Code or, as the case  may               be, without consideration or for a  considera-               tion which he known to be inadequate.                   (3) Notwithstanding anything contained  in               subsections (1) and (2), the court may decline               to draw the presumption referred to in  either               of the said sub-sections if the  gratification               or  thing  aforesaid is, in  its  opinion,  so               trivial  that no inference of  corruption  may               fairly be drawn.                   5.   Criminal  misconduct.-(1)  A   public               servant  is  said  to commit  the  offence  of               criminal misconduct--               (a)  if  he habitually accepts or  obtains  or               agrees  to accept or attempts to  obtain  from               any  person for himself or for any other  per-               son,  any  gratification  (other  than   legal               remuneration) as a motive or reward such as is               mentioned  in Section 161 of the Indian  Penal               Code (45 of 1860), or               276               (b)  if  he habitually accepts or  obtains  or               agrees  to  accept or attempts to  obtain  for               himself or for any other person, any  valuable               thing without consideration or for a consider-               ation  which he knows to be’  inadequate  from               any  person whom he knows to have been, or  to               be,  or  to be likely to be concerned  in  any               proceeding or business transacted or about  to               be transacted by him. or having any connection               with  the official functions of himself or  of               any public servant to whom he is  subordinate,               or from any person whom he knows to be  inter-               ested  in  or related to the  person  so  con-               cerned, or               (c)  if he dishonestly or fraudulently  misap-               propriates  or otherwise converts for his  own               use any property entrusted to him or under his               control  as  a public servant  or  allows  any               other person so to do, or               (d)  if he, by corrupt or illegal means or  by

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             otherwise  abusing  his  position  as   public               servant, obtains for himself or for any  other               person any valuable thing or pecuniary  advan-               tage, or               (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.                       (2)  Any  public servant  who  commits               criminal  misconduct shall be punishable  with               imprisonment  for  a term which shall  not  be               less  than  one year but which may  extend  to               seven years and shall also be liable to fine:                       Provided  that the court may, for  any               special reasons recorded in writing, impose  a               sentence  of  imprisonment of  less  than  one               year.                XXX    XXX             XXX                       5A.  Investigation  into  cases  under               this  Act.--(1) Notwithstanding anything  con-               tained in the Code of Crimi-               277               nal  Procedure,  1898 (5 of 1898),  no  police               officer below the rank,--                   (a)  in  the  case of  the  Delhi  Special               Police  Establishnent,  of  an  Inspector   of               Police;               (b)  in the presidency-towns of  Calcutta  and               Madras,  of an Assistant Commissioner  of  Po-               lice;               (c)  in  the  presidency-town  of  Bombay,  of               Superintendent of Police; and               (d)  elsewhere, of a Deputy Superintendent  of               Police,               shall investigate any offence punishable under               Section  161. Section 165 or Section  165A  of               the  Indian Penal Code (45 of 1860)  or  under               Section  5 of this Act without the order of  a               Presidency  Magistrate or a Magistrate of  the               first  class, as the case may De, or make  any               arrest therefor without a warrant:                   Provided  that  if a  police  officer  not               below  the rank of an Inspector of  Police  is               authorised  by  the State Government  in  this               behalf  by  general or special order,  he  may               also investigate any such offence without  the               order  of a Presidency Magistrate or a  Magis-               trate of the first class, as the case may  be,               or make arrest therefor without a warrant:                   Provided further that an offence  referred               to in clause (e) of sub-section (1) of Section               5 shall not be investigated without the  order               of  a police officer not below the rank  of  a               Superintendent of Police.                   (2)  If,  from  information  received   or               otherwise,  a  police officer  has  reason  to               suspect the commission of an offence  which.he               is  empowered to investigate under  subsection               (1)  and  considers that for  the  purpose  of               investigation or inquiry into such offence, it               is  necessary to inspect any  bankers’  books,               then,  notwithstanding anything  conrained  in

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             any  law for the time being in force,  he  may               inspect  any bankers’ books in so far as  they               relate to the accounts of the person suspected               to have committed that offence or of any other               person suspected to be holding money on               278               behalf of such person, and take or cause to be               taken certified copies of the relevant entries               therefrom,  and  the bank concerned  shall  be               bound  to  assist the police  officer  in  the               exercise of his powers under this sub-section:                        Provided  that  no power  under  this               sub-section in relation to the accounts of any               person shall be exercised by a police  officer               below  the rank of Superintendent  of  Police,               unless  he  is specially  authorised  in  this               behalf  by  a police officer of or  above  the               rank of a Superintendent of Police.                         Explanation.   In this  sub-section,               the  expressions "bank" and  "bankers’  books"               shall  have the meanings assigned to  them  in               the Bankers’ Books Evidence Act, 189 1 ( 18 of               1891).                         6.  Previous sanction necessary  for               prosecution.--(1)  No court shall take  cogni-               zance  of an offence punishable under  Section               161  or  Section  164 or Section  165  of  the               Indian Penal Code (45 of 1860), or under  sub-               section  (2) or sub-section (3A) of Section  5               of this Act, 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 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, of  the               State Government;               (c)  in the case of any 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 subsection (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 com-               279               petent  to remove the public servant from  his               office  at  the  time when   the  offence  was               alleged to have been committed." The relevant provisions of the Constitution of India are  as under:                     12  1.  Restriction  on  discussion   in               Parliament  .--No discussion shall take  place               in  Parliament with respect to the conduct  of               any  Judge of the Supreme Court or of  a  High               Court  in the discharge of his  duties  except               upon a motion for presenting an address to the               President praying for the removal of the Judge

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             as hereinafter provided.                XXX                 XXX           XXX                     124.  Establishment and constitution  of               Supreme Court.--(1)  .......                XXX             XXX           XXX                      (4) A Judge of the Supreme Court  shall               not  be removed from his office except  by  an               order of the President passed after an address               by  each  House of Parliament supported  by  a               majority of the total membership of that House               and by a majority of not less than  two-thirds               of  the  members  of that  House  present  and               voting has been presented to the President  in               the  same  session  for such  removal  on  the               ground of proved misbehaviour or incapacity.                     (5)  Parliament may by law regulate  the               procedure  for the presentation of an  address               and  for  the investigation and proof  of  the               misbehaviour  or incapacity of a  Judge  under               clause (4).                XXX          XXX            XXX                     148. Comptroller and Auditor-General  of               India.(1)  There  shall be a  Comptroller  and               Auditor-General of India who shall be appoint-               ed by the President by warrant under his  hand               and seal and shall only be removed from office               in  like manner and on the like grounds  as  a               Judge of the Supreme Court.                XXX               XXX         XXX               280                          211.  Restriction on discussion  in               the  Legislature.  No  discussion  shall  take               place  in  the  Legislature of  a  State  with               respect  to  the conduct of any Judge  of  the               Supreme  Court or of a High Court in the  dis-               charge of his duties.                XXX          XXX           XXX                          218. Application of certain  provi-               sions  relating  to  Supreme  Court  to   High               Courts  .--The provisions of clauses  (4)  and               (5) of Article 124 shall apply in relation  to               a High Court as they apply in relation to  the               Supreme Court with the substitution of  refer-               ence  to the High Court for references to  the               Supreme Court.               XXX            XXX               XXX                          324. Superintendence, direction and               control of elections to be vested in an  Elec-               tion Commission.--(1)                XXX             XXX            XXX                               (5) Subject to the  provisions               of any law made by Parliament, the  conditions               of  service and tenure of office of the  Elec-               tion Commissions and the Regional  Commission-               ers shall be such as the President may by rule               determine:                          Provided  that the  Chief  Election               Commissioner  shall  not be removed  from  his               office  except in like manner and on the  like               grounds  as a Judge of the Supreme  Court  and               the  conditions of service of the Chief  Elec-               tion  Commissioner shall not be varied to  his               disadvantage after his appointment:                          Provided  further  that  any  other               Election  Commissioner or a  Regional  Commis-

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             sioner shall not be removed from office except               on  the recommendation of the  Chief  Election               Commissioner.                XXX         XXX            XXX                          361.  Protection of  President  and               Governors and Rajpramukhs.--(1) The President,               or the Governor or               281               Rajpramukh of a State, shall not be answerable               to any court for the exercise and  performance               of the powers and duties of his office or  for               any  act done or purporting to be done by  him               in  the  exercise  and  performance  of  those               powers and duties:                          Provided  that the conduct  of  the               President  may be brought under review by  any               court, tribunal or body appointed or designat-               ed  by  either  House of  Parliament  for  the               investigation of a charge under Article 61:                          Provided  further that  nothing  in               this clause shall be construed as  restricting               the  right of any person to bring  appropriate               proceedings against the Government of India or               the Government of a State.                         (2) No criminal proceedings  whatso-               ever shall be instituted or continued  against               the  President, or the Government of a  State,               in any court during his term of office.                         (3)  No  process for the  arrest  or               imprisonment of the President, or the Governor               of a State, shall issue from any court  during               his term of office.                         (4)  No civil proceedings  in  which               relief  is claimed against the  President,  or               the  Governor of a State, shall be  instituted               during  his  term of office in  any  court  in               respect  of any act done or purporting  to  be               done by him in his personal capacity,  whether               before or after he entered upon his office  as               President, or as Governor of such State, until               the expiration of two months next after notice               in writing has been delivered to the President               or  the Governor. as the case may be, or  left               at  his office stating the nature of the  pro-               ceedings,  the cause of action therefore,  the               name,  description and place of  residence  of               the  party by whom such proceedings are to  be               instituted and the relief which he claims."     It may also be mentioned that the Judges (Inquiry)  Act, 1968  has  been enacted by the Parliament  to  regulate  the procedure  for the investigation and proof of  the  misbeha- viour or incapacity of a Judge of the Supreme Court or of  a High Court and for the presentation of an 282 address  by  Parliament  to the President  and  for  matters connected  therewith, as contemplated by Articles 124(5)  of the Constitution of India. It is in the background of  these provisions that the point arising for our determination  has to be decided.     I  may also at this stage refer to  the  recommendations made  by  the Santhanam Committee which  preceded  the  1964 amendment  in the Act. It is as a result of the 1964  amend- ment  that  clause (e) was inserted in  Sub-section  (1)  of Section  5 of the Act to make the possession  of  dispropor- tionate  assets by a public servant by itself a  substantive

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offence  of criminal misconduct, while prior to this  amend- ment  such  a provision was merely a rule of  evidence  con- tained in Sub-section (3) of Section 5 as initially  enacted which was then available only to prove the offence of crimi- nal misconduct defined in clauses (a) to (d) of  Sub-section (1) of Section 5. In the Report of the Santhanam  Committee, certain  portions relating to the judiciary which may  throw light on the question before us are extracted as under:                          "SECTION 12                         MISCELLANEOUS               XXX              XXX              XXX                         12.2 We did not consider the judici-               ary to be included in our terms of  reference.               Except the Supreme Court and some  subordinate               courts  in the Union Territories, the  Govern-               ment of India have no direct relation with the               administration  of the judiciary  except  that               appointment  of High Court Judges is  made  by               the  President.  It has to be borne  in  mind,               however,  that all courts in india are  common               to the Centre and the States and can entertain               and  decide  cases  relating  to   exclusively               Central subjects. Therefore, integrity of  the               judiciary is of paramount importance even  for               the proper functioning of the Central  Govern-               ment.                         Though  we did not make  any  direct               inquiries,  we  were informed  by  responsible               persons including Vigilance and Special Police               Establishment Officers that corruption  exists               in  the lower ranks of the judiciary all  over               India and in some places it has spread to  the               higher  ranks also. We were deeply  distressed               at  this information. We,  therefore,  suggest               that  the Chief Justice of India in  consulta-               tion with the Chief Justices               283               of the High Courts should arrange for a  thor-               ough inquiry into the incidence of  corruption               among the judiciary, and evolve, in  consulta-               tion  with the Central and State  Governments,               proper  measures to prevent and eliminate  it.               Perhaps the setting up of vigilance  organisa-               tion  under  the direct control of  the  Chief               Justice  of every High Court coordinated by  a               Central  Vigilance  Officer  under  the  Chief               Justice of India may prove to be an  appropri-               ate method.                XXX        XXX               XXX                SUMMARY       OF       CONCLUSIONS        AND               RECOMMENDATIONS                  XXX              XXX         XXX                117. The Chief Justice of India in  consulta-               tion  with  the  Chief Justices  of  the  High               Courts  should arrange for a thorough  inquiry               into  the incidence of corruption,  among  the               judiciary,  and evolve, in  consultation  with               the  Central  and  State  Governments,  proper               measures to prevent and eliminate it.  Perhaps               the  setting  up  of  vigilance  organisations               under the direct control of the Chief  Justice               of  every High Court coordinated by a  Central               Vigilance  Officer under the Chief Justice  of               India may prove to be an appropriate method.                              (Para. 12.2)

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               XXX            XXX          XXX                REPORT    ON   THE    GOVERNMENT    SERVANTS’               CONDUCT RULES                 XXX            XXX         XXX                Rule 15                   15.  The Committee attaches  great  impor-               tance to the changes recommended in the exist-               ing  Rule 15 relating to the  acquisition  and               disposal  of property by Government  servants.               On  the  one hand, these reports  serve  as  a               check against corruption and on the other,  it               may  be irritating to honest Government  serv-               ants to be subject to restrictions               284               not  imposed  on other citizens.  It  is  also               necessary to ensure that the reports are  such               as  to  serve the purpose for which  they  are               obtained. Further, no reports need be obtained               from  those  Government servants who  have  no               opportunity  to enrich themselves by  unlawful               means.                   16. The most important change made by  the               Committee  in this rule is the replacement  of               the  annual  immovable property  return  by  a               complete  periodical statement of  assets  and               liabilities. In the circumstances now  obtain-               ing  in  the country, the  immovable  property               return  has ceased to have much  significance.               The  Committee  considers  that  in  order  to               enable  Government  to ascertain  whether  any               Government servant is in possession of  assets               disproportionate  to  his  known  sources   of               income or whether he is running into debt,  it               is  necessary  that  the  Government   servant               should  furnish  a complete statement  of  his               assets and liabilities periodically.                   17. The Committee considers that only  the               more/  important  items  of  movable  property               should  be reported  specifically and that  it               would  be  sufficient if  Government  servants               report  the  total  value  of  other   movable               property  except  articles of daily  use  like               clothes,  utensils, crockery, books, etc.  But               it  is  essential that the value  of  ’movable               property should be stated in the statement  of               assets and liabilities.                   18. The Committee considered the  argument               that  there was no need for the submission  of               periodical  returns of assets and  liabilities               and  that  it would be sufficient  if  such  a               statement  is  given once either on  entry  or               after  promulgation  of these rules  and  that               thereafter it should be enough if the  Govern-               ment servant is required to report all  trans-               actions in immovable property and all transac-               tions  in movable property exceeding a  speci-               fied value. The Committee decided to recommend               that Government servants should be required to               submit  a periodical statement of  assets  and               liabilities, as it would not be reasonable  to               require the Government servants to report  all               the  innumerable  small  transactions   taking               place continually. But as these small transac-               tions  may cumulatively be sizable and have  a               big  effect  on his  financial  position,  the

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             purpose will               285               be  served  only  by  obtaining  a  periodical               balance-sheet. The Committee, however, consid-               ers that the reports need not be frequent  and               that it may perhaps be sufficient if they  are               submitted once in five years.                         19.  Another point that was  consid-               ered  by the Committee was  whether  jewellery               should  be included within the  definition  of               movable  property.  The  Committee  recognises               that inclusion of jewellery may be  considered               to  be an unnecessary intrusion into the  pri-               vate  affairs  of a  Government  servant.  But               jewellery  constitute important assets and  if               excluded   from  the  definition  of   movable               property,  the balance-sheet submitted by  the               Government  servant may not set out  the  true               picture."                                 (emphasis supplied)     In view of the decision by a Constitution Bench in  R.S. Nayak  v. A.R. Antulay, [1984] 2 SCC 183 the correctness  of which was not disputed before us, we have to assume for  the purpose of this case that no sanction under Section 6 of the Act  was  required-for prosecution of  the  appellant  since cognizance  of  the offence was taken  after  the  appellant ceased  to hold the office of Chief Justice on  7.4.1976  on his  retirement.  It was, however, contended  that  for  the purpose of deciding the question of applicability of the Act to  the  appellant as a Judge or Chief Justice of  the  High Court, the office with reference to which the offence  under the  Act is alleged to have been committed, it is  necessary to  consider  the  feasibility of grant  of  sanction  under Section  6  of the Act for prosecution of a  person  holding such  an office. In other words, the argument is  that  not- withstanding  the  fact that no sanction  was  required  for prosecution of the appellant after his retirement, the  need and feasibility of grant of the sanction under Section 6  of the  Act if he was prosecuted before his retirement  is  the test  to determine the applicability of the Act to a  person holding,  the office of a Judge or Chief Justice of  a  High Court.  It  is argued that if the grant  of  sanction  under Section  6 of the Act for prosecution of the  incumbent  for the offence is not feasible or envisaged, the clear  indica- tion is that holder of such office does not fall within  the purview of the Act. The question of grant of sanction  under Section 6 for the prosecution of a Judge or Chief Justice of a High Court for an offence punishable under Section 5(2) of the Act is, therefore, of considerable importance to  decide the main question in this appeal. Clauses  (a),  (b) and (c) in Sub-section (1) of  Section  6 exhaus- 286 tively provide for the competent authority to grant sanction for  prosecution in case of all the public servants  failing within  the  purview of the Act. Admittedly,  such  previous sanction  is a condition precedent for taking cognizance  of an offence punishable under the Act, of a public servant who is  prosecuted  during  his continuance in  the  office.  It follows  that the public servant falling within the  purview of  the  Act must invariably fall within one  of  the  three clauses in Sub-section (1) of Section 6. It follows that the holder of an office, even though a ’public servant’  accord- ing  to the definition in the Act, who does not fall  within any  of  the clauses (a), (b) or (c) of Sub-section  (1)  of

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Section 6 must be held to be outside the purview of the  Act since  this special enactment was not enacted to cover  that category  of public servants inspite of the wide  definition of  ’public servant’ in the Act. This is the only manner  in which  these  provisions of the Act can  be  harmonized  and given  full effect. The scheme of the Act is that  a  public servant  who commits the offence of criminal misconduct,  as defined  in the seven clauses of Sub-section (1) of  Section 5,  can  be punished in accordance with  Subsection  (2)  of Section 5, after investigation of the offence in the  manner prescribed  and with the previous sanction of the  competent authority  obtained under Section 6 of the Act, in  a  trial conducted  according to the prescribed procedure. The  grant of  previous  sanction  under Section 6  being  a  condition precedent for the prosecution of a public servant covered by the Act, it must follow that the holder of an office who may be a public servant according to the wide definition of  the expression  in the Act but whose category for the  grant  of sanction  for prosecution is not envisaged by Section  6  of the Act, is outside the purview of the Act, not intended  to be  covered by the Act. This is the only manner in  which  a harmonious constitution of the provisions of the Act can  be made for the purpose of achieving the object of that  enact- ment.  This appears to be the obvious conclusion even for  a case like the present where no such sanction for prosecution is  necessary  on the view taken in Antulay, and  not  chal- lenged  before us, that the sanction for  prosecution  under Section 6 is not necessary when cognizance of the offence is taken  after  the accused has ceased to hold the  office  in question.     In this context, it is useful to recall the analysis  of Section  6 made in R.S. Nayak v. A.R. Antulay, [1984] 2  SCC 183, which is as under:               "Offences prescribed in Sections 161, 164  and               165 IPC and Section 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               287               occupying.  the  office carries  with  it  the               powers conferred on the office. Power general-               ly  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  of-               fice. 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  con-               ferred  on the office.  The interrelation  and               interdependence  between  individual  and  the               office he holds is substantial and not severa-               ble.  Each of the three clauses of  subsection               (1) of Section 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 Section  6               requires  a sanction before taking  cognizance

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             of  offences committed by public servant.  The               offence  would  be  committed  by  the  public               servant  by misusing or abusing the  power  of               office and it is from that office, the author-               ity  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 oppor-               tunity 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  then   legal               remuneration for doing or forebearing to do an               official act (Section 161 (IPC) or as a public               servant  abets offences punishable under  Sec-               tions  161  and 163 (Section 164  IPC)  or  as               public servant obtains a valuable thing  with-               out consideration from person concerned in any               proceeding  or  business  transacted  by  such               public  servant (Section 165 IPC)  or  commits               criminal misconduct as defined in Section 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  as               public servant. The expression ’office’ in the               three sub-clauses of Section 6(1) would clear-               ly 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               288                entitled to remove him from that office which               he has abused. This interrelation between  the               office  and its abuse if severed would  render               Section  6  devoid of any  meaning.  And  this               interrelation  clearly provides a clue to  the               understanding  of the provision in  Section  6               providing for sanction by a competent authori-               ty  who would be able to judge the action   of               the public servant before removing the bar, by               granting sanction, to the taking of the cogni-               zance  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 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.               lqbal  Ahmad  v. State of A.P., [1979]  2  SCR

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             1007: [1979] 4 SCC 172: [1979] SCC (Cri.) 926:               AIR  1979 SC 677)."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  specula-               tive. 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  con-               ferred on the office which the public  servant               holds,  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 held by the               289               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."                                      (emphasis supplied)                                   (para 23, pp. 204-206)     It is significant from the above extract in Antulay that for the purpose of grant of sanction under Section 6 of  the Act  to prosecute the public servant, a ’vertical  hierarchy between the authority competent to remove the public servant from  that office and the nature of the office held  by  the public  servant against whom sanction is sought’ is  clearly envisaged and, therefore, the authority competent to  remove the  public  servant from that office should  be  vertically superior in the hierarchy in which the office exists  having the  competence to judge the, action of the  public  servant before  removing  the  bar by granting  sanction.  In  other words,  Section  6 applies only in cases where  there  is  a vertical hierarchy of public offices and the public  servant against  whom  sanction is sought is under  the  sanctioning authority in that hierarchy. It would follow that where  the office held by the public servant is not a part of a  verti- cal  hierarchy  in  which there is an  authority  above  the public  ’servant  in that hierarchy, by the very  scheme  of Section  6  it can have no application and  holder  of  such office who does not have any vertical superior above him  in the absence of any such hierarchy cannot be within the ambit of the enactment, the Act not being envisaged or enacted for holder  of such public office. The decisions of  this  Court have  unequivocally held that a Judge or Chief Justice of  a High  Court is a constitutional functionary, even though  he holds a public office and in that sense, may be included  in the  wide  definition of ’public servant’. It  is  for  this

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reason  that  the learned Solicitor General  did  not  place reliance  on clauses (a) and (b) of Sub-section (1) of  Sec- tion 6 in the present case but relied on clause (c) thereof, to contend that sanction thereunder can be obtained for  the prosecution  of  a Judge or Chief Justice of  a  High  Court since  the  holder  of such an office can  be  removed  from office  by  the President in accordance with clause  (4)  of Article  124 of the Constitution. This is the only  argument for  this purpose and, therefore, its tenability has  to  be tested. Section 6(1)(c) provides for previous sanction ’in the  case of any . 290 other person, of the authority competent to remove him  from his office’. Clauses (4) and (5) of Article 124 which  apply to  a  Judge  of the Supreme Court are  made  applicable  to Judges  of the High Courts by virtue of Article  218.  These may be re-quoted here for readyreference:               "124.  Establishment and constitution  of  Su-               preme Court’(1) ...                XXX        XXX          XXX                         (4)  A  Judge of the  Supreme  Court               shall not be removed from his office except by               an  order  of the President  passed  after  an               address by each House of Parliament  supported               by  a majority of the total membership of  the               House and by a majority of not less than  two-               thirds  of the members of that  House  present               and voting has been presented to the President               in  the same session for such removal  on  the               ground of proved misbehaviour or incapacity.                         (5)  Parliament may by law  regulate               the  procedure  for  the  presentation  of  an               address and for the investigation and proof of               the  misbehaviour  or incapacity  of  a  Judge               under clause (4).                XXX      XXX            XXX                         218.  Application of certain  provi-               sions  relating  to  Supreme  Court  to   High               Courts.- The provisions of clauses (4) and (5)               of  Article 124 Shall apply in relation  to  a               High  Court as they apply in relation  to  the               Supreme Court with the substitution of  refer-               ences to the High Court for references to  the               Supreme Court."      According  to  Article 124(4), a Judge can  be  removed from his office by an order of the President passed after an address  by each House of Parliament supported by  the  pre- scribed  majority  on the ground of proved  misbehaviour  or incapacity. Since the order of removal in such a case is  to be  made  by the President, the  learned  Solicitor  General contended  that  the competent authority to  remove  such  a Judge as required by Section 6(1)(c) is the President and it is  in  this manner that Section 6(1)(c) is  attracted.  The question is whether this argument is tenable. 291     There  are several fallacies in this  argument.  Section 6(1)(c)  speaks  of ’authority competent  to  remove’  which plainly indicates the substantive competence of the authori- ty  to remove, not merely the procedural or formal  part  of it. In other words, the authority itself should be competent to  remove or the one to decide the question of removal  and not the which merely obeys or implements by the decision  of some  other authority. This conclusion is reinforced’by  the above extract from the Antulay decision, which speaks of the

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vertical hierarchy between the authority competent to remove the public servant and the nature of the office held by  the public servant indicating that the removing authority should have  the  competence  to take a decision  on  the  material placed  before  it for the purpose of deciding  whether  the public  servant  against whom sanction is sought,  has  been prima  facie guilty of abuse of his office so that there  is occasion  to bring about cessation of interrelation  between the  office  and abuse by the holder of the  office  by  his removal  therefrom.  Obviously,  the  competent  sanctioning authority  envisaged thereby is a vertical superior  in  the hierarchy  having  some power of  superintendence  over  the functioning  of the public servant. Where no such  relation- ship exists in the absence of any vertical hierarchy and the holder of the public office is a constitutional  functionary not  subject  to power of superintendence of  any  superior, Section  6 can have no application by virtue of  the  scheme engrafted  therein. The expression ’authority  competent  to remove’  under  Section 6(1)(c), unless  construed  in  this manner,  will foul with the construction made on  Section  6 andits scheme in the Antulay decision. In S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., 1982] 2 SCR 365 it was clearly pointed out that a High Court  Judge is a high constitutional functionary and  while dealing  with  the question of the  machinery  having  legal sanction to deal with a High Court Judge against whom  alle- gations  of lack of intergrity and corruption were made,  it was stated as under:                        ".   .....  Baldly put, the  question               is: Should an Additional Judge whose  misbeha-               viour  or  lack of integrity has come  to  the               fore  he continued as an Additional  Judge  or               confirmed as a Permanent Judge? The answer  at               the first impulse and rightly would be in  the               negative  but  the  question  requires  deeper               consideration. If the misbehaviour or lack  of               integrity is glaringly self-evident the  ques-               tion of his continuance obviously cannot arise               and  in all probabilities will not engage  the               attention of the appointing authority,               292               for,  the concerned Judge in such a  situation               would  himself  resign  but when  we  talk  of               misbehaviour or lack of integrity on the  part               of  an  Additional Judge having  come  to  the               fore,  by and large the instances are of  sus-               pected  misbehaviour and/or reported  lack  of               integrity  albeit based on opinions  expressed               in  responsible and respectable  quarters  and               the serious question that arises is whether in               such  cases  the  concerned  Additional  Judge               should  be dropped merely on opinion  material               or  concrete facts and material in  regard  to               allegations  of  misbehaviour and/or  lack  of               integrity should be insisted upon? In my  view               since the question relates to the  continuance               of a high constitutional functionary like  the               Additional  Judge  of High Court it  would  be               jeopardising  his security and judicial  inde-               pendence  if action is taken on the  basis  or               merely opinion material. Moreover, no  machin-               ery having legal sanction behind it for  hold-               ing  an  inquiry--disciplinary  or   otherwise               against the concerned Judge on allegations  of               misbehaviour and or lack of integrity  obtains

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             in  the  Constitution or any law made  by  the               Parliament, save and except the regular  proc-               ess  of removal indicated in Art.  124(4)  and               (5)  read  with Art. 218 and the  Judges  (In-               quiry)  Act,  1968."Therefore,  the  important               question that arises in such cases of suspect-               ed misbehaviour and/or reported lack of integ-               rity  is who will decide and how  whether  the               concerned  Judge has in fact indulged  in  any               misbehaviour  or  act of  corruption?  In  the               absence  of satisfactory machinery  possessing               legal sanction to reach a positive  conclusion               on  the  alleged  misbehaviour or  an  act  of               corruption the decision to drop him shall have               been  arrived at merely on the basis of  opin-               ions,  reports,  rumours or gossip  and  apart               from  being  unfair and unjust to him  such  a               course will amount to striking at the root  of               judicial independence. The other  alternative,               namely, to continue him as an Additional Judge               for another term or to make him permanent if a               vacancy is available and then take action  for               his removal under the regular process indicat-               ed in Art. 124(4) and (5) read with Art. 2  18               and Judges (Inquiry) Act,1968 may sound absurd               but must be held to be inevitable if  judicial               independence, a cardinal faith of our  Consti-               tution,  is to be preserved  and  safeguarded.               Not to have a corrupt Judge or a Judge who has               misbehaved is unquestionably in public  inter-               est  but at the same time preserving  judicial               independence  is of the highest public  inter-               est. It is a question of                         293               choosing  the  lesser evil and  in  inevitable               course has to’ be adopted not for the  protec-               tion of the corrupt or dishonest judge but for               protecting several other honest, conscientious               and  hard-working Judges by  preserving  their               independence; it is a price which the  Society               has to pay to avoid the greater evil that will               ensue if judicial independence is  sacrificed.               Considering  the  question from the  angle  of               public interest therefore, I am clearly of the               view  that while considering the  question  of               continuance  of the sitting Additional  Judges               on the expiry of their initial term either  as               Additional  Judges or as Permanent Judges  the               test  of suitability contemplated  within  the               consultative process under Art. 217(1)  should               not  be invoked--at least until such  time  as               proper machinery possessing legal sanction  is               provided for enabling a proper inquiry against               an  alleged errant Judge less cumbersome  than               the  near impeachment process contemplated  by               Art. 124(4) and (5) of the Constitution."                           (Tulzapurkar, J. ) (pp. 920-21)                         "  .....  As the law now stands it is               not open to any single individual, whether  it               is the President or the Chief Justice of India               or  anybody  else to take  cognizance  of  any               allegations  of misbehaviour or of  incapacity               of  a  Judge and to take any legal  action  on               their   basis  under  the   Judges   (Inquiry)               Act,/1968.  One  hundred Members  of  the  Lok

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             Sabha  or  fifty Members of  the  Rajya  Sabha               alone can initiate any action on such  allega-               tions. Naturally, all others are excluded from               taking  cognizance  of  them  and  acting   on               them  .......                         (Venkataramiah, J.) (pp. 1338-39)                             (emphasis supplied)     Even  though  the above observations were  made  in  the context of continuance in office of Additional Judge of  the High Court and the transfer of Judges to another High Court, yet the nature of office of a High Court Judge and the  only legal sanction available under the existing law to deal with them  even  in the event of allegations  of  corruption  was clearly spelt out. It was pointed out that ordinarily such a person faced with cogent material against him would  resign, but  in case he does not, the only remedy available  is  his removal  from office in accordance with clauses (4) and  (5) of Article 124 read with Article 294 218 of the Constitution till a suitable provision with legal sanction  is made. It was also pointed out that  the  object served  in  this manner was the greater public  interest  to preserve  independence of judiciary and not to  protect  the corrupt Judge who was an exception. The scheme of the exist- ing  law  to  deal with such situations  was  considered  at length and it was also held that even the power to  transfer under Article 222 of the Constitution to another High  Court could not be exercised for these reasons.    In  this  context, clause (5) of Article 124 is  also  of considerable  significance.  The construction  made  of  the provisions  of the Act must also fit in with the  scheme  of clauses (4) and (5) of Article 124 read with Article 2 18 of the  Constitution in order to present a  harmonious  scheme. Clause (5) of Article 124 enables enactment of a special law by the Parliament to regulate the procedure for presentation of an address and for the ’investigation’ and ’proof’ of the ’misbehaviour’ or incapacity of a Judge under clause (4). It is in exercise of this power that the Parliament has enacted the  Judges  (Inquiry)  Act, 1968. It  is  significant  that clause  (5) of Article 124 covers the field  of  ’investiga- tion’  and ’proof’ of the ’misbehaviour’ of a  Judge.  There can  be  no doubt that the expression ’misbehaviour’  is  of wide  import and includes within its ambit criminal  miscon- duct  as defined in Sub-section (1) of Section 5 of the  Act as also lesser misconduct of a Judge falling short of crimi- nal misconduct. The special law envisaged by Article  124(5) for  dealing  with the misbehaviour of a  Judge  covers  the field  of ’investigation’ and ’proof’ of the  ’misbehaviour’ and  the  only punishment provided is by Article  124(4)  of removal from office. There is no escape from the  conclusion that  Article  124(5) is wide enough to include  within  its ambit  every  conduct of a Judge amounting  to  misbehaviour including  criminal misconduct and prescribes the  procedure for  investigation  and proof thereof. Thus,  even  for  the procedure for investigation into any misbehaviour of a Judge as well as its proof, a law enacted by the Parliament  under Article  124(5) is envisaged in the  constitutional  scheme. Such a law in the form of the Judges (inquiry) Act, 1968 and the  rules framed thereunder has been enacted. These  provi- sions  were made in the Constitution and the law  thereunder enacted  when the Prevention of Corruption Act, 1947 was  in the  Statute Book. The prior enactment and existence of  the Prevention  of Corruption Act, 1947 at the time then  clause (4) and (5) of Article 124 of the Constitution were  framed, does  indicate  the constitutional scheme  that  a  separate

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parliamentary  law to deal with the investigation and  proof of  misbehaviour  of  a Judge was  clearly  contemplated  by providing a special machinery for this category of constitu- tional functionaries 295 notwithstanding the general law available and applicable  to the  public servants in general, which included the  Preven- tion  of Corruption Act, 1947. If special provisions in  the form of clauses (4) and (5) of Article 124 and Article 2  18 of the Constitution and the special enactment by the Parlia- ment under Article 124(5) were provided in the constitution- al  scheme  for Judges of the High Courts  and  the  Supreme Court,  there can be no valid reason to hold that  they  are governed  by  the general provisions in  addition  to  these special provisions enacted only for them. The need for these special  provisions is a clear pointer in the  direction  of inapplicability to them of the general provisions applicable to the public servants holding other public offices, not  as constitutional   functionaries.  Construction   of   Section 6(1)(c)  of  the Act as suggested by the  learned  Solicitor General by treating the President as ,the competent authori- ty  to  remove a High Court Judge would  conflict  with  the provisions  enacted  in clauses (4) and (5) of  Article  124 read with Article 218 of the Constitution. Such a  construc- tion  has undoubtedly to be avoided. This is more so,  since the  rejection of such an argument would not in  any  manner jeopardise the provisions of the Act as it would result only in  the failure of the attempt to bring  the  constitutional functionaries  such  as Judges of the High  Courts  and  the Supreme Court within the purview of that Act, while the  Act would  continue to apply to the public servants  in  general who  fall within the scheme of Section 6 of the Act for  the purpose of grant of previous sanction for prosecution  which is  a condition precedent for cognizance of an offence  pun- ishable under that Act.     It can also not be overlooked that the Santhanam Commit- tee Report did not consider the judiciary within its purview and  it  merely  made certain recommendations  to  devise  a machinery involving the Chief Justice of India to deal  with the  cases of errant Judges. The 1964 amendment made in  the Act pursuant to the recommendations of the Santhanam Commit- tee  did not make any amendment in the Act to indicate  that Judges  of the High Courts and the Supreme Court  were  also brought  within  the purview of the Act. It  was  thereafter that  the  Judges (Inquiry) Act, 1963 and the  rules  framed thereunder were enacted to provide for the investigation and proof  of allegations of misbehaviour of a Judge in  accord- ance  with Article 124(5) of the Constitution. The  decision in S.P. Gupta was rendered much later and while dealing with the  situations arising out of allegations  of  misbehaviour including corruption against High Court Judges, it was  held that the only machinery with legal sanction in existence  is that  available under clauses (4) and (5) of Article 124  of the  Constitution.  It is reasonable to  assume  that  while rendering the decision in S.P. Gupta, 296 where  in the question of dealing with some  Judges  against whom  allegations of lack of integrity and  corruption  also were  made and the question was of the  machinery  available for  dealing  with them, the learned Judges could  not  have been  unaware of the provisions of the Act while taking  the view  that  the  only legal machinery  available  under  the existing law is that in accordance with clauses (4) and  (5) of Article 124 of the Constitution. These are strong reasons to hold that Section 6(1)(c) of the Act is inappliable to  a

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Judge  of  a High Court or the Supreme Court  and  for  that reason such constitutional functionaries do not fall  within the purview of the Act.     An  additional reason’indicating inapplicability of  the Act is the practical difficulty in applying criminal miscon- duct, defined in clause (e) of Sub-section (1) of Section  5 of the Act, to a Judge of a High Court or the Supreme Court. The history of insertion of this clause:, y the 1964  amend- ment  to the Act is well-known. What was earlier a  rule  of evidence  in  Sub-section (3) of Section 5 of the  Act,  was made a substantive offence of criminal misconduct by insert- ing  clause  (e)  in Sub-section (1) of Section  5  by  this amendment.  Apart from the argument of the  learned  counsel for  the  appellant  that the  inability  to  satisfactorily account  for  possession of disproportionate  assets  is  an ingredient of the offence in clause (e), practical  require- ment  of this clause is a further pointer to indicate  inap- plicability  thereof to a Judge of a High Court or  the  Su- preme Court. The fact remains that while according  sanction to  prosecute  under  Section 6 of the  Act,  the  competent authority  has to satisfy itself about the public  servant’s inability  to satisfactorily account for possession of  dis- proportionate  assets.  As held in  Antulay,  the  competent authority before granting sanction has to apply its mind and be  satisfied about the existence of a prima facie case  for prosecution of the public servant on the basis of the  mate- rial  placed before it. In order to form an objective  opin- ion, the competent authority must undoubtedly have before it the version of the public servant on the basis of which  the conclusion can be reached whether it amounts to satisfactory account or not. It is well-known and is also clear from  the Report of the Santhanam Committee that the rules  applicable to  the public servants in general regulating their  conduct require  them  to furnish periodical  information  of  their assets which form a part of their service record. The recom- mendations  of the Santhanam Committee after which the  1964 amendment inserting clause (e) in Sub-section (1) of Section 5  was made, suggest some amendment to the  rules  governing the conduct of public servants for giving periodical  infor- mation  of  all their assets.  Prescribing  the  substantive offence  by insertion of clause (e.) as a part of  the  same schem           297 of amendment also suggests the manner in which this require- ment  of the offence of inability to satisfactorily  account can  be examined by the competent authority  while  granting sanction  to  prosecute the public servant. These  words  in clause  (e) have to be given some meaning which would  place the burden on the prosecution, howsoever light, to make  out a  prima facie case for obtaining sanction of the  competent authority  under Section 6 of the Act and this can  be  done only  if it is read as a part of the scheme under which  the public  servant  is required to furnish particulars  of  his assets  with  reference to which the disproportion  and  his inability  to satisfactorily account can be  inferred.  This requirement  can be easily satisfied in the case  of  public servants governed by conduct rules requiring them to furnish periodical  returns  of  their/assets and  to  intimate  the superior  in the hierarchy of acquisition of every  material assets,  so  that his service record at all  times  contains particulars of his known assets. In the case of such  public servants  whenever  sanction to prosecute  is  sought  under Section  6 of the Act, the competent authority can form  the requisite  opinion  on the basis of the  available  material including  the service record of the public servant to  come

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to  the conclusion whether the offence under clause  (e)  of possession  of  disproportionate  assets  which  the  public servant  cannot  satisfactorily account is  made  out  prima facie.  In  the case of Judges of the High  Courts  and  the Supreme Court, there is no such requirement under any provi- sion  of  furnishing particulars of their assets  so  as  to provide  a  record thereof with reference to which  such  an opinion can be formed and there is no vertical superior with legal  authority enabling obtaining of information from  the concerned  Judge. It does appear that this too is a  pointer in  the direction that even after the 1964 amendment of  the Act  following  the Report of the Santhanam  Committee  when clause  (e) was inserted in Sub-section (1) of Section 5  of the Act, the Legislature did not intend to include Judges of the High Courts and the Supreme Court within the purview  of the enactment.     If  the Act is applicable to Judges of the  High  Courts and  the  Supreme Court, it is obvious that  the  same  must apply  also to the Chief Justice of India,  the  Comptroller and  Auditor  General and the Chief  Election  Commissioner. Incongruous  results  would follow in such  an  event,  even assuming that the guidelines suggested by the learned Solic- itor  General, are deemed to be incorporated in the  Act  by implication  while  dealing with persons holding  these  of- fices. Apart from the legal permissibility of implying these guidelines in the Act, there are obvious practical difficul- ties  which cannot be overcome. In the proposed  guidelines, it  was suggested that the involvement of the Chief  Justice of India invariably should be read even for commencing the 298 investigation  into  the offence and  the  President,  while granting the sanction under Section 6(1)(c), would also  act on  the advice of the Chief Justice of India. Assuming  that it is permissible to do so in the absence of any such provi- sion in the Act, the problem which stares us in the face is, what is to be done where such action is contemplated against the  Chief  Justice of India himself.  Any  provision  which cannot apply to the Chief Justice of India, cannot obviously apply to the Judges of the Supreme Court, or for that matter even  to the High Court Judges, since the Chief  Justice  of India is not a vertical superior of any of them, there being no  such vertical hierarchy and the Chief Justice  of  India having no power of superintendence even over the High  Court Judges, much less the Supreme Court Judges: The incumbent of the  office of Chief Justice of India exercises  only  moral authority  over his colleagues in the Supreme Court and  the High  Court  Judges, which has no legal sanction  behind  it making  it justiciable. In the case of the  Comptroller  and Auditor  General  and the Chief Election  Commissioner,  the situation  would be more piquant. Obviously, the Chief  Jus- tice of India cannot be involved in the process relating  to them and there is none else to fill that role in that situa- tion. The Constitution, while providing that their  position would be akin to that of a Judge of the Supreme Court, could not  have intended to place them on a pedestal  higher  than that  of a Supreme Court Judge. The infirmity of this  argu- ment advanced by the learned Solicitor General invoking  the aid  of certain implied guidelines involving the Chief  Jus- tice  of India in the process of contemplated  action  under the  Act  against a Judge of the High Court or  the  Supreme Court,  leaves  more questions unanswered that  it  answers. That  apart, if the Act was intended to apply to these  con- stitutional  functionaries, it could not have  been  enacted leaving  such  gaping  holes which are  incapable  of  being plugged to present a comprehensive scheme for this purpose.

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   It was also suggested at the hearing that the absence of need of sanction for prosecution under Section 6 of the  Act after  the public servant ceases to hold office as  held  in Antulay,  suggests  answer to the question  of  construction posed  in this case. It does not appear to be so.  The  need for  sanction under Section 6 for prosecution of the  holder of  a  public office indicates the ambit and  scope  of  the enactment for deciding whether the holder of a public office falls within the purview of the enactment. No doubt, as held in  Antulay, no sanction for prosecution under Section 6  is required after the public servant ceases to hold office, but it does not imply that every holder of a public office after ceasing  to  hold that office is within the purview  of  the enactment,  even  though during the tenure in  office,  only those public servants are 299 within its ambit in whose case sanction under Section 6 must be obtained. The ambit of the enactment is to be  determined on  the basis of the public office held by the public  serv- ant, which office is alleged to have been abused during  the tenure  for  committing the offence of  criminal  misconduct under the Act and it is not the fact of continuance in  that office or ceasing to hold it which decides the ambit of  the enactment. In other words, if the holder of a public  office during  his  tenure in office cannot be  prosecuted  without sanction  under  Section  6, then, as held  in  Antulay,  no sanction-for  his  prosecution  after ceasing  to  hold  the office may be necessary, but his prosecution is made because while  in  office he could be prosecuted With  the  previous sanction  under  Section 6. Conversely, if the holder  of  a public  office while continuing in that office could not  be prosecuted  under this Act on account of inapplicability  of Section  6 and, therefore, the non-feasibility  of  previous sanction for prosecution under Section 6, then on his  ceas- ing to hold the office, he is not brought within the purview of  the Act merely because Antulay decides that no  sanction for prosecution under Section 6 is ’needed after the  holder of a public office ceases to hold that office. It is for the purpose  of construing the provisions of the  enactment  and determining  the  scope and ambit thereof and  for  deciding whether  the  holder  of a public office  comes  within  the purview  of the enactment that the feasibility  of  previous sanction  for prosecution and applicability of Section 6  of the  Act  is important. In short, it is for the  purpose  of construction  of the provisions of the enactment and  deter- mining its scope that Section 6 which prescribes the  condi- tion precedent of previous sanction for prosecution for  the offence of criminal misconduct punishable under Section 5(2) of  the Act, holds the key which unlocks the true vistas  of the enactment.     The concept of sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment  that the pattern is incomplete without it. The clear  legislative intent is that the enactment applies only to those in  whose case sanction of this kind is contemplated and those to whom the provision of sanction cannot squarely apply are  outside its  ambit. The provision for sanction is like the  keystone in  the arch of the enactment. Remove the keystone of  sanc- tion and the arch crumbles.     The  conclusion  that the Act does not  apply  to  these constitutional  functionaries,  namely, Judges of  the  High Courts,  Judges  of the Supreme Court, the  Comptroller  and Additor  General and the Chief Election  Commissioner,  need not be viewed with scepticism or treated as their  exclusion from the purview of the Act as if they are ordinarily

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300 within  its ambit. A proper perception would  indicate  that these  constitutional functionaries were never  intended  to fail  within  the ambit of the Act as initially  enacted  in 1947,  when provisions similar to Articles 124(4) &  (5)  of the  Constitution  were present in the Government  of  India Act, 1935, nor was any such attempt made by amendment of the Act’  in  1964  subsequent to the Report  of  the  Santhanam Committee and the same position continues in the  Prevention of  Corruption  Act, 1988. If there is now a  felt  need  to provide  for such a situation, the remedy lies  in  suitable parliamentary  legislation  for the purpose  preserving  the independence of judiciary free from likely executive  influ- ence  while  providing a proper and adequate  machinery  for investigation  into allegations of corruption  against  such constitutional functionaries and for their trial and punish- ment  after the investigation. The remedy is not  to  extend the  existing  law and make it workable by reading  into  it certain guidelines for which there is no basis in it,  since the  Act  was  not intended to apply to them.  The  test  of applicability  of the existing law would be the legal  sanc- tion  and justiciability of the proposed guidelines  without which it is unworkable in the case of such persons. In fact, the very need to read the proposed guidelines in the  exist- ing law by implication is a clear indication that the law as it exists does not apply to them. Making the law  applicable with  the  aid of the suggested guidelines, is  not  in  the domain  of judicial craftmanship, but a naked usurpation  of legislative power in a virgin field.     It  appears that the framers of the Constitution,  while dealing with such constitutional functionaries, contemplated merely  their removal from office in the manner provided  in Article  124(4)  as the only punishment; and a  special  law enacted  by  the Parliament under Article 124(5),  even  for investigation and proof of any misbehaviour alleged  against a  superior  Judge instead of the general  law  was  clearly visualised  when the alleged misbehaviour is connected  with his office. A charge of corruption against a superior  Judge amounting  to  criminal misconduct by abuse  of  his  office would  certainly fail within the ambit of misbehaviour  con- templated  under  Article 124(5), since  misbehaviour  of  a Judge in the form of corruption by abuse of his office would be an act of gross misbehaviour justifying his removal  from office,  irrespective  of other legal sanction, if  any,  to punish  a  corrupt  Judge. It cannot be  imagined  that  the framers of the Constitution provided for removal of a  supe- rior Judge on lesser grounds of misbehaviour but nor for the gross  misbehaviour of corruption. There is no  escape  from the conclusion that the gross misbehaviour of corruption  of a  Judge must undoubtedly fall within the ambit  or  Article 124(5)  justifying  his removal in the  manner  provided  in Article 124(4). Article 124(5) con- 301 templates  a special law enacted by the Parliament even  for investigation into any allegation of misbehaviour which must include  an allegation of corruption. Can it, therefore,  be said that while investigation into the allegation of corrup- tion for the purpose of removal under Article 124(4) needs a special law made by the Parliament under Article 124(5),  it is  not so for his prosecution which can be made  under  the provisions of the existing Prevention of Corruption Act?  It appears that the framers of the Constitution did not contem- plate the need for prosecution of a Judge at that level  and expected  that a superior Judge would resign if  faced  with credible material in support of allegations of misbehaviour,

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and  in  case he did not resign, his removal  under  Article 124(5)  would be sufficient to deal with the situation.  The need for his prosecution was not visualised and,  therefore, not  provided for in the existing law. The Act  had  already been made when the Constitution was framed and the amendment made  in the Act in 1964 was after the  experience for  some time of the functioning of the judiciary under the Constitu- tion. It is significant that even the Judges (Inquiry)  Act, 1968,  was enacted under Article 124(5) of the  Constitution much later and after the 1964 amendment of the Act. The fact that  the Parliament did not enact any other law  even  then for the investigation into allegations of corruption against a  superior Judge and for his trial and punishment for  that offence  and  rest content merely with enacting  the  Judges (Inquiry) Act, 1968, to provide for the procedure for remov- al of a Judge under Article 124(4) is a clear pointer in the direction  that the Parliament has not as yet considered  it expedient to enact any such law for the trial and punishment on  the charge of corruption of a superior Judge, except  by his  removal  from office in the manner prescribed.  It  may also be noticed that the provisions of the Judges  (Inquiry) Act, 1968, provide the procedure for investigation and proof of an allegation of corruption against a superior Judge  and if  the Prevention of Corruption Act is held  applicable  to them,  then  there would be two  separate  procedures  under these  two enactments providing for investigation  into  the same charge. Can this anomaly and incongruity be  attributed to  a  conscious act of the Parliament  while  enacting  the Judges (Inquiry) Act, 1968, after the 1964 amendment in  the Act.     Maybe,  need is now felt for a law providing  for  trial and  punishment of a superior Judge who is charged with  the criminal misconduct of corruption by abuse of his office. If that be so, the Parliament being the sole arbiter, it is for the Parliament to step in and enact suitable legislation  in consonance with the constitutional scheme which provides for preservation of the independence of judiciary and it is  not for  this  Court  to expand the field of  operation  of  the existing law to cover 302 the superior Judges by usurping the legislative function  of enacting guidelines to be read in the existing law by impli- cation,  since without the proposed guidelines the  existing legislation  cannot apply to them. Such an exercise  by  the Court  does not amount to construing an ambiguous  provision to advance the object of its enactment, but would be an  act of trenching upon a virgin field of legislation and bringing within  the ambit of the existing legislation a category  of persons  outside  it, to whom it was not intended  to  apply either as initially enacted or when amended later.     In this context, it would not be out of place to mention that this unfortunate situation has also another  dimension. The  framers  of the Constitution had  visualised  that  the constitutional scheme for appointment of the superior Judges would ensure that by an honest exercise performed by all the constitutional  functionaries  of their  obligation  in  the process  of appointment of a superior Judge, there would  be no      occasion to try and punish any appointee to  such  a high office for an act of corruption. Appointment of superi- or  Judges is from amongst persons of mature age with  known background  and reputation in the legal profession. By  that age the personality is fully developed and the  propensities and  background of the appointee is well known. The  collec- tive wisdom of the constitutional functionaries involved  in the  process of appointing a superior Judge is  expected  to

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ensure  that  persons of unimpeachable integrity  alone  are appointed to these high offices and no doubtful persons gain entry. In the case of any late starter or an exception,  the power of removal in accordance with Article 124(4) by adopt- ing  the procedure prescribed under Article 124(5)  was  ex- pected to be sufficient to eradicate the exceptional  menace while  preserving  independence of the  judiciary.  If  this scheme is found to be inadequate in the present context,  it is  also  indicative of the failure  of  the  constitutional functionaries  involved  in the process of  appointments  in fulfilling the confidence reposed in them. It is not unlike- ly  that  the care and attention expected from them  in  the discharge  of this obligation has not been bestowed  in  all cases.  The need for such legislation now would,  therefore, not be entirely on account of the absence of it so far,  but also due to the failure of proper discharge of this  consti- tutional obligation and not any defect in the constitutional scheme.  It is, therefore, time that all the  constitutional functionaries  involved  in the process  of  appointment  of superior Judges should be fully alive to the serious  impli- cations of their constitutional obligation and be zealous in its  discharge in order to ensure that no doubtful  appoint- ment  can be made even if sometime a good  appointment  does not go through. This is not difficult to achieve. The  work- ing of the appointment process is a 303 matter  connected with this question and not  divorced  from it.  most  often, it is only a bad appointment  which  could have been averred that gives rise to a situation raising the question  of  the  need of such a law.  Due  emphasis  must, therefore, be laid on prevention even while taking  curative measures.     It is a sad commentary on the working of the appointment process  and the behaviour of some of the  appointees  which has led to this situation. The confidence reposed in them by the  framers of the Constitution has been betrayed  to  this extent.  It was expected that the superior Judges  who  were constituted  into a different class and created as  superior morally  not needing the deterrence of such a law to  punish them  would be alive to the need of a high code  of  conduct regulating their behaviour justifying the absence of such  a law  for them. It was reasonable to further expect that  the aberrations,  if any, in their rank would be subject to  the moral  and social sanction of their community ensuring  that they tread the right path. The social sanction of their  own community  was visualised as sufficient safeguard  with  im- peachment and removal from office under Article 124(4) being the  extreme  step needed, if at all. It  appears  that  the social sanction of the community has been waning and  inade- quate  of  late. If so, the time for  legal  sanction  being provided  may have been reached. No doubt for  the  judicial community in general it would be a sad day to become suspect needing  such a legislation to keep it on the  right  track. However,  that is the price the entire community has to  pay if  its  internal  checks in the form of  moral  and  social sanction  are  found deficient and inadequate  to  meet  the situation which legal sanction alone can prevent. It is  for the  Parliament to decide whether that stage has reached  in the superior judiciary when legal sanction alone can be  the remedy for maintenance of public confidence in the integrity of the superior judiciary without which independence of  the judiciary would itself be in jeopardy.     The view that Judges of the High Courts and the  Supreme Court  are outside the purview of the Prevention of  Corrup- tion Act, fits in with the constitutional scheme and is also

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in  harmony with the several nuances of the entire  existing law relating to the superior Judges while the contrary  view fouls  with it at several junctures and leaves  many  gaping holes  which  cannot  be filled by  judicial  exercise.  The patchwork  of proposing guidelines suggested by the  learned Solicitor General apart from being an impermissible judicial exercise,  also does not present a complete  and  harmonious picture  and  fails to provide answers  to  several  obvious querries which arise. The inescapable con- 304 clusion,  therefore,  is that the Prevention  of  Corruption Act, 1947, as amended by the 1964 amendment is  inapplicable to  Judges of the High Courts and the Supreme Court.  Juris- prudentially this conclusion need not be anathema as  stated in 46 Am. Jur. 2d. s. 84:--               "In the absence of a statute, misfeasance of a               judicial  officer is not a  criminal  offence,               impeachment being the exclusive remedy." These words summarise the true legal position in the case of superior Judges who are separately classified in the consti- tutional scheme itself.     There is nothing strange about the above view since  the scheme in some other countries also appears to be the  same. In  recent  years in some countries,  there  were  instances which provoked a strong debate on the subject and  different remedies  were advocated to deal with the situation. It  may be mentioned that instances of punishment for corruption  in earlier centuries including the indictment of Lord Bacon  is not apposite for the reason that the situation then was  not akin to the scheme in the Indian Constitution for the judges of the High Courts and the Supreme Court and the  protection given to them for ensuring the independence of judiciary.     As  indicated earlier, while adopting curative  measures for the malady, a renewed emphasis on its prevention in  the future  has  to  be borne in mind. In this  context,  it  is useful to recall the high esteem in which the higher judici- ary  was  held by the prime builders of our  nation  in  its nascent stage. In a letter dated 18th December, 1947, to the Prime  Minister, Pt. Jawaharlal Nehru and the  Deputy  Prime Minister, Sardar Vallabhbhai Patel, the first Chief  Justice of free India said:                        "Under  the Constitution Act,  provi-               sions  can  be made for the  appointment,  the               salary,  pension,  leave and  removal  of  the               judges.  In addition to that, I think it  will               be  desirable to insert a provision under  the               Act, or to frame statutory rule under the Act,               defining  the relations between the  judiciary               and  the  executive.  All  communications   in               respect  of  the appointments and  the  griev-               ances, if any, of the judges should come  from               the  Chief  Justice  of  the  provincial  High               Court,  through the Governor and  not  through               the Home Department of the province. I  recog-               nise  that the Governor-General or the  Presi-               dent, who will be an elected person, will have               to consult the Cabinet according to the               305               Rules  of  Business  framed  for  working  the               Central  Government. It seems to me,  however,               fundamentally essential that the High  Courts,               the Federal Court and the Supreme Court  (when               established)  should not be considered a  part               of,  or working under, any department  of  the               executive Government of India. It should be an

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             independent branch of the Government in  touch               directly  with  the  GovernorGeneral  or   the               President of the Dominion of India.                         I am sure the Cabinet will agree  to               the  principle of keeping the  judiciary  free               from  the control of the executive.  The  duty               and credit for maintaining this high tradition               is   on  the  Government  in  existence   when               the’Constitution  and the statutory rules  are               framed, and I have written this to you  confi-               dently  hoping  that you share  my  desire  to               safeguard the dignity and independence of  the               judiciary  and  will  do the  needful  in  the               matter." Sardar  Vallabhbhai  Patel  promptly replied  to  the  Chief Justice of India saying ’your views will be very helpful  to us in dealing with the subject.’               (Sardar   Patel’s   Correspondence,   1945-50, edited by Durga Das, Vol. VI, pp. 274-76)     The  framers  of  the Constitution  had  visualized  the higher  echelons  of the judiciary as comprised  of  men  of strong  moral  and  ethical fibre who  would  provide  moral leadership in the society of free India and function as  the sentinel of the other wings of the State not needing scruti- ny  themselves. Our Constitution provides for separation  of powers of the three wings of the State with judicial  review as one of the essential tenets of the basic structure of the Constitution.  It is thus the judiciary which  is  entrusted with  the  task of interpretation of  the  Constitution  and ensuring that the other two wings do not overstep the  limit delineated  for  them by the Constitution.  With  this  duty entrusted to the higher judiciary, it was natural to  expect that the higher judiciary would not require any other agency to keep a watch over it and the internal discipline  flowing from  the  moral sanction of the community  itself  will  be sufficient  to  keep it on the right track without  the  re- quirement of any external check which may have the  tendency to  interfere  with  the independence of  the  judiciary,  a necessary concomitant of the proper exercise of its  consti- tutional obligation. It is for this reason that the  higher. judiciary was treated differently in the 306 Constitution  indicating  the great care and  attention  be- stowed in prescribing the machinery for making the  appoint- ments.  It was expected that any deviation from the path  of rectitude  at that level would be a rare phenomenon and  for the  exceptional  situation  the provision  for  removal  in accordance  with  clause (4) of Article 124  was  made,  the difficulty  in adopting that course being itself  indicative of the rarity  with which it was expected to be invoked.  It appears  that for a rare aberrant at that level,  unless  he resigned  when  faced with such a  situation,  removal  from office  in accordance with Article 124(4) was  envisaged  as the only legal sanction. If this was the expectation of  the framers  of the Constitution and their vision of  the  moral fibre in the higher echelons of the judiciary in free India, there  is nothing surprising in the omission to  bring  them within  the  purview of the Prevention  of  Corruption  Act, 1947,  or absence of a similar legislation for  them  alone. Obviously, this position continued even during the delibera- tions  of  the Santhanam Committee which  clearly  mentioned inits  Report submitted in 1964 that it has  considered  the judiciary  outside the ambit of its deliberations.  Clearly, it  was expected that the higher judiciary whose word  would be  final  in the interpretation of all laws  including  the

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Constitution, will be comprised of men leading in the spirit of self-sacrifice concerned more with their obligations than rights,  so that there would be no occasion for anyone  else to  sit in judgment over them. If it is considered that  the situation  has altered requiring scrutiny of the conduct  of even Judges at the highest level and that it is a matter for the  Parliament to decide, then the remedy lies in  enacting suitable  legislation  for that purpose providing  for  said guards to ensure independence of judiciary since the  exist- ing law does not provide for that situation. Any attempt  to bring  the Judges of the High Courts and the  Supreme  Court within the purview of the Prevention of Corruption Act by  a seemingly constructional exercise of the enactment,  appears to me, in all humility, an exercise to fit a square peg in a round hole when the two were never intended to match.     I would, therefore, allow the appeal even though by  the majority view it must fail.                                  ORDER               In view of the majority judgments, the  appeal               is dismissed. R.P.                                 Appeal dismissed. 307