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CASE NO.: Appeal (civil)  5636 of 2006

PETITIONER: Parkash Singh Badal and Anr

RESPONDENT: State of Punjab and Ors

DATE OF JUDGMENT: 06/12/2006

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

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.19640 of 2004) WITH  Criminal Appeal No.1279/06 @ SLP (Crl.)No.2697/2004, Civil  Appeal No 5637/06 @ SLP (C)No.20000/2004, Criminal Appeal No.1281/06 @ SLP (Crl.)No.1620/2006, Civil Appeal No.5639/06 @ SLP (C)No.10071/2006, Civil Appeal No.5638/06 @ SLP (C)No. 20010/2004 and Criminal Appeal No.1280/06 @ SLP (Crl.)No. 3719/2006

Dr. ARIJIT PASAYAT, J.

       Leave granted. In each of these appeals challenge is to the judgment of  the Punjab and Haryana High Court  dismissing the petition  filed by the appellant in each case questioning the validity of  proceedings initiated under the Prevention of Corruption Act,  1988 (in short the ’Act’) and/or the Indian Penal Code, 1860  (in short the ’IPC’). In the latter category of cases the question  raised is either lack of sanction in terms of Section 197 of the  Code of Criminal Procedure, 1973 (in short the ’Code’) or the  legality thereof.  

       It is the stand of the appellant in each case that the  proceedings were initiated on the basis of complaints which  were lodged mala fide and as an act of political vendetta. It is  stated that allegations are vague, lack in details and even if  accepted at the face value, did not show the commission of  any offence. It is stated that though the  High Court primarily  relied on a Constitution Bench decision of this Court in R.S.  Nayak v A.R. Antulay (1984 (2) SCC 183), the said decision  was rendered in the context of the Prevention of Corruption  Act, 1947 (in short the ’Old Act’). It is submitted that the  provisions contained in Section 6 thereof are in pari materia to  Section 19 of the  Act so far as relevant for the purpose of this  case; the effect of Section 6(2) of the Old Act (corresponding to  Section 19(2) of the Act) was lost sight of. The decision in the  said case was to the effect that if an accused is a public  servant who has ceased to be a public servant and/or is a  public servant of different category then no sanction in terms  of Section 19(1) of the Act corresponding to Section 6(1) of the  Old Act is necessary.  

       So far as the factual scenario of these cases is concerned  appellant Sri Parkash Singh Badal was at the relevant point of  time the Chief Minister of the State of Punjab, Smt. Surinder  Kaur is his wife and Shri Sukhbir Singh is his son. Smt.

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Surinder Kaur and Shri Sukhbir Singh Badal allegedly  committed offences punishable under Sections 8 and 9 of the  Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan  Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers  during  the concerned period and were at the time of taking  cognizance members of Legislative Assembly. Shri Sukhbir  Singh Badal was a member of the Parliament. As noted above,  primary stand is that the effect of Section 6(2) of the Old Act  corresponding to Section 19 (2) of the Act was not considered  and in that view of the matter the judgment in Antulay’s case  (supra) is to be considered per incuriam. Additionally, it is  submitted that the voluminous charge sheets filed are  extremely vague and do not indicate commission of any  definite offence. Some allegations of general nature have been  made. The decision in P.V. Narasimha Rao v. State (1998 (4)  SCC 626) specifically dissented from the view regarding  vertical hierarchy which appears to be the foundation for the  conclusion that the authority competent to remove the  accused from office alone could give sanction. It is submitted  that the offences alleged to have been committed under IPC  had close nexus with the workmen who are on official duty  and therefore sanction under Section 197 of the Code is  mandatory. With reference to several judgments of this Court  it is submitted that even offences punishable under Sections   468, 471 and 120B have been in certain cases held to be  relatable to the official duty thereby mandating sanction in  terms of Section 197 of the Code.  

       It is pointed out that the mala fide intention is clear as all  these cases were registered at Mohali Police Station which was  declared to be the police station for the purpose of  investigation of the concerned cases and new Court was  established for the trial of the concerned cases and  jurisdiction was conferred on one officer without following the  process of consultation with the High Court. These are  indicative of the fact that action was taken with mala fide  intention only to harass the accused persons as noted above.  

       Learned counsel for the respondents on the other hand  submitted that the decision in R.S. Nayak’s case (supra)  correctly lays down the position. Several attempts were made  in the past to distinguish said case and to propound that the  said decision did not indicate the correct position in law. The  allegations of  mala fide are clearly unfounded. No new court  was established and in fact Special Judge of Special Court  who was appointed to have consultation with the High Court  was only designated to hear the cases. In fact for the sake of  convenience these cases having link with each other can be  disposed of early if they are taken up together by one Court.  

       In essence, it is submitted that the decision in R.S.  Nayak’s case (supra) is not per incuriam as contended. Under  Section 19(1) of the  Act previous sanction is prescribed for a  public servant if (a) he is a public servant at the time of taking  cognizance of the offence and (b) the accused continues to  hold office alleged to have been mis-used at the time of taking  cognizance of the offence by the Court. This is the view  expressed in R. S. Nayak’s case (supra).

       Section 6 of the Old Act and Section 19 of the Act read as  follows: "6.  Power to try summarily.\027(1) Where a  special Judge tries any offence specified in  sub-section (1) of section 3, alleged to have  been committed by a public servant in relation

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to the contravention of any special order  referred to in sub-section (1) of section l2 A of  the Essential Commodities Act, 1955 (10 of  1955) or of an order referred to in clause (a) of  sub-section (2) of that section, then,  notwithstanding anything contained in sub- section (1) of section 5 of this Act or section  260 of the Code of Criminal Procedure, 1973 (2  of 1974), the special Judge shall try the offence  in a summary way, and the provisions of  sections 262 to 265 (both inclusive) of the said  Code shall, as far as may be, apply to such  trial: Provided that, in the case of any  conviction in a summary trial under this  section, it shall be lawful for the special Judge  to pass a sentence of imprisonment for a term  not exceeding one year: Provided further that when at the  commencement of, or in the course of, a  summary trial under this section, it appears to  the special Judge that the nature of the case is  such that a sentence of imprisonment for a  term exceeding one year may have to be  passed or that it is, for any other reason,  undesirable to try the case summarily, the  special Judge shall, after hearing the parties,  record an order to that effect and thereafter  recall any witnesses who may have been  examined and proceed to hear or re-hear the  ease in accordance with the procedure  prescribed by the said Code for the trial of  warrant cases by Magistrates. (2) Notwithstanding anything to the contrary  contained in this Act or in the Code of  Criminal Procedure, 1973 (2 of 1974), there  shall he no appeal by a convicted person in  any case tried summarily under this section in  which the special Judge passes a sentence of  imprisonment not exceeding one month, and of  fine not exceeding two thousand rupees  whether or not any order under section 452 of  the said Code is made in addition to such  sentence, but an appeal shall lie where any  sentence in excess of the aforesaid limits is  passed by a special Judge. 19. Previous sanction necessary for  prosecution.\027(1) No court shall take  cognizance of an offence punishable under  sections 7, 10, 11, 13 and 15 alleged to have  been committed by a public servant, except  with the previous sanction,\027   (a)     in the case of a person who is employed  in connection with the affairs of the Union and  is not removable from his office save by or with  the sanction of the Central Government, of  that Government;  (b)     in the case of a person who is employed  in connection with the affairs of a State and is  not removable from  his office save by or with  the sanction of the State Government, of that  Government;           (c)   in the case of any other person, of the  authority competent to remove him from his

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office. (2) Where for any reason whatsoever any doubt  arises as to whether the previous sanction as  required under sub-section (1)  should be given  by the Central Government or the 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.  (3) Notwithstanding anything contained in the  Code of Criminal Procedure, 1973 (2 of  1974),\027                (a)     no finding, sentence or order passed by  a special Judge shall be reversed or altered by  a Court in appeal, confirmation or  revision on  the ground of  the absence of, or any error,  omission or irregularity in, the sanction          required under sub-section (1), unless in the  opinion of that court, a failure of justice has in  fact been  occasioned thereby;  (b)     no court shall stay the proceedings  under this Act on the ground of any error,  omission or  irregularity in the sanction  granted by the authority, unless it is satisfied  that such error, omission or irregularity has  resulted in  a failure of justice; (c)     no court shall stay the proceedings under  this Act on any other ground and no court  shall exercise the powers of revision in relation  to any interlocutory order passed in any  inquiry, trial, appeal or other  proceedings. (4) In determining under sub-section (3)  whether the absence of, or any error, omission  or irregularity in, such sanction has  occasioned or resulted in a failure of justice  the court shall have regard to the fact whether  the objection could and should have been  raised at any earlier stage in the proceedings.  Explanation.\027For the purposes of this  section,\027  (a)   error includes competency of the  authority to grant sanction;                              (b)     a sanction required for prosecution  includes reference to any requirement  that the  prosecution  shall be at the instance of a  specified authority or with the sanction of a  specified person or any requirement of a  similar nature.                                   IPC provided for offences by or relating to public servants  under Chapter IX including Sections 161 to 165A. The Old    Act was enacted on 12.3.1947, with the object of making   provisions for the prevention of bribery and corruption more  effective. In 1952 a Committee headed by Dr. Bakshi Tek  Chand was constituted. The said Committee  examined the  true intent and purpose of Section 6 of the Old Act. It was  inter alia noted by the Committee as follows:

"Section 6 of the Act prescribes that no  prosecution under Section 5(2) is to be  instituted without the previous sanction of the  authority competent to remove the accused  officer from his office. The exact implications of

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this provisions have on occasions given rise to  a certain amount of difficulty. There have been  cases where an offence has been disclosed  after the officer concerned has ceased to hold  office, e.g., by retirement. In such cases it is  not entirely clear whether any sanction is at all  necessary. Another aspect of the same problem  is presented by the type of case which, we are  told, is fairly common-where an officer is  transferred from one jurisdiction to another or  an officer who is lent to another Department,  commits an offence while serving in his  temporary office and then returns to his parent  Department before the offence is brought to  light. In a case of this nature doubts have  arisen as to the identity of the authority from  whom sanction for prosecution is to be sought.  In our opinion there should be an  unambiguous provision in the law under  which the appropriate authority for according  sanction is to be determined on the basis of  competence to remove the accused public  servant from office at the time when the  offence is alleged to have been committed."

       The Law Commission of India in its 41st Report  recommended amendment to Section 197 of the Code   suggesting  to grant protection of previous sanction to a public  servant who is or was a public servant at the time of  cognizance. Following the report of the Law Commission of  India, Section 197 of the Code was amended in 1969. The Act  was enacted on 9.9.1988 and the Statement of Objects and  Reasons indicated widening of the scope of the definition of  "public servant" and the incorporation of offences already   covered under Sections 161 to 165A of the IPC in the Act. New  Section 19 as was enacted virtually  the same as section 6 of  the Old Act. Earlier to R.S. Nayak’s case (supra) this Court  had occasion to deal with the issues in S. A. Venkataraman v.  State (AIR1958 SC 107).  In para 14 it was stated as follows: "14\005..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\005..A public  servant who has ceased to be a public servant  is not a person removable from any office by a  competent authority\005.."

       Following the decision rendered in Venkataraman’s case  (supra) and C.R. Bansi v. State of Maharashtra (1970(3) SCC  537)  the High Court accepted the view of learned trial Judge  and declined relief as noted above.  

       The use of the expression "is" in Section 19 of the Act vis- ‘-vis the expression "is" or "was" is indicative of the legislative  intent. Though certain changes  were made in the Code no  corresponding change was made in the Act.  

       Mr. P.P. Rao, learned senior counsel for the appellants  in  connected case contended that this was a case of casus  omissus. The discussions indicate that the reports of Dr.

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Bakshi Tek Chand and of the Law Commission of India were to  be accepted so far as they relate to covering the ex public  servants. This plea shall be dealt with in the cases separately.   

       In reply, learned counsel for the respondents submitted  that much before R.S. Nayak’s case (supra) this Court in C.R.  Bansi’s case (supra) held as follows:  

"9\005..But if a person ceases to be a public  servant the question of harassment does not  arise. The fact that an appeal is pending does  not make him a public servant. The appellant  ceased to be a public servant when the order of  dismissal was passed. There is no force in the  contention of the learned counsel and the trial  cannot be held to be bad for lack of sanction  under Section 6 of the Act."

       It is their stand that where the public servant has ceased  to be a public servant in one capacity by ceasing to hold office  which is alleged to have been misused, the fortuitous    circumstance of the accused being in another capacity holding  an entirely different public office is irrelevant. It was  categorically held in R. S. Nayak’s case (supra) in para 13 that  "on analysis of the policy of the whole section the authority  competent to remove the public servant from the office alleged  to have mis-used is alone the competent sanctioning  authority."  

       In that case, it was inter alia, held as follows:

"13. Section 5 of the 1947 Act defines the  offence of criminal misconduct and a public  servant who commits an offence of criminal  misconduct is liable to be punished with  imprisonment for a term which shall not be  less than one year but which may extend to  seven years and shall also be liable to fine.  Section 6 provides for a sanction as a pre- condition for a valid prosecution for offences  punishable under Sections 161, 164, 165 IPC  and Section 5 of the 1947 Act. It reads as  under:

6. (1) No court shall take cognizance of an  offence punishable under Section 161 or  Section 165 of the Indian Penal Code, or under  sub-section (2) of Section 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 affairs of the Union and is not  removable from his office save by or with the  sanction of the Central Government,  

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

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

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(2) Where for any reason whatsoever any doubt  arises whether the previous sanction as  required under sub-section (1) should be given  by the Central or State Government or any  other authority, such sanction shall be given  by that Government or authority which would  have been competent to remove the public  servant from his office at the time when the  offence was alleged to have been committed.

       Xx              xx              xx              xx

19. Section 6 bars the court from taking  cognizance of the offences therein enumerated  alleged to have been committed by a public  servant except with the previous sanction of  the competent authority empowered to grant  the requisite sanction. Section 8 of 1952 Act  prescribes procedure and powers of Special  Judge empowered to try offences set out in  Section 6 of I 947 Act. Construction of Section  8 has been a subject to vigorous debate in the  cognate appeal. In this appeal we will proceed  on the assumption that a Special Judge Can  take cognizance of offences he is competent to  try on a private complaint. Section 6 creates a  bar to the court from taking cognizance of  offences therein enumerated except with the  previous sanction of the authority set out in  clauses (a),(b) and (c) of sub-section (1). The  object underlying such provision was to save  the public servant from the harassment of  frivolous or unsubstantiated allegations. The  policy underlying Section 6 and similar  sections, is that there should not be  unnecessary harassment of public servant.  (See C.R. Bansi V. State of Maharashtra (1971  (3) SCR 236). Existence thus of a valid  sanction is a prerequisite 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 offence alleged to have been committed  by him as public servant. Undoubtedly, the  accused must be a public servant when he is  alleged to have committed the offence of which  he is accused because Sections 161, 164, 165  IPC and Section 5(2) of the 1947 Act clearly  spell out that the offences therein defined can  be committed by a public servant. If it is  contemplated to prosecute public servant who  has committed such offences, when the court  is called upon to take cognizance of the  offence, a sanction ought to be available  otherwise the court would have no jurisdiction  to take cognizance of the offence. A trial  without a valid sanction where one is  necessary under Section 6 has been held to be  a trial without jurisdiction by the court. (See  R.R. Chari v. State of U.P.(1963) 1 SCR 121)

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and S.N. Bose v. State of Bihar ( 1968 (3) SCR  563)  In Mohd. Iqbal  Ahmad v. State of A P.(  1979(2) SCR 1007) it was held that a trial  without a sanction renders the proceedings ab  initio void. But the terminus a quo for a valid  sanction is the time when the court is called  upon to take cognizance of the offence. If  therefore, when the offence is alleged to have  been committed, the accused was a public  servant but by the time the court is called  upon to take cognizance of the offence  committed by him as public servant, he has  ceased to be a public servant, no sanction  would he necessary for taking cognizance of  the offence against him. This approach is in  accord with the policy underlying Section 6 in  that a public servant is not to be exposed to  harassment of a frivolous or speculative  prosecution. If he has ceased to be a public  servant in the meantime, this vital  consideration ceases to exist.  As a necessary  corollary, if the accused has ceased to be a  public servant at the time when the court is  called upon to take cognizance of the offence  alleged to have been committed by him as  public servant, Section 6 is not attracted. This  aspect is no more res integra. In S.A.  Venkataraman v. State (1958 SCR 1040)  this  Court held as under:

In our opinion, in giving effect to the  ordinary meaning of  the words used  in Section 6 of the Act, the  conclusion is inevitable that at the  time a court is asked to take  cognizance not only the offence  must have been committed by a  public servant but the person  accused is still a public servant  removable from his office by a  competent authority before the  provisions of Section 6 can apply. In  the present appeals, admittedly, the  appellants had ceased to be public  servants at the time the court took  cognizance of the offences alleged to  have been committed by them as  public servants. Accordingly, the  provisions of Section 6 of the Act did  not apply and the prosecution  against them was not vitiated by the  lack of a previous sanction by a  competent authority.

And this view has been consistently followed in  C.R. Bansi case  and K.S. Dharmadatan v.  Central Government (1979 (3) SCR 832). It  therefore appears well settled that the relevant  date with reference to which a valid sanction is  sine qua non for taking cognizance of an  offence committed by a public servant as  required by Section 6 is the date on which the  court is called upon to take cognizance of the  offence of which he is accused.

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                       (underlined for emphasis)

       Xx                      xx              xx   23. 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 occupying the office carries with it  the powers conferred on the office. Power  generally is not conferred on an individual  person. In a society governed by rule of law  power is conferred on office or acquired by  statutory status and the individual occupying  the office or on whom status is conferred  enjoys the power of office or power flowing  from the status. The holder of the office alone  would have opportunity to abuse or misuse the  office. These sections codify a well-recognised  truism that power has the tendency to corrupt.  It is the holding of the office which gives an  opportunity to use it for corrupt motives.  Therefore, the corrupt conduct is directly  attributable and flows from the power  conferred on the office. This interrelation and  interdependence between individual and the  office he holds is substantial and not  severable. Each of the three clauses of sub- section (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 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  authority must be competent to remove him so  as to be entitled to grant sanction. The removal  would bring about cessation of interrelation  between the office and abuse by the holder of  the office. The link between power with  opportunity to abuse and the holder of office  would be severed by removal from office.  Therefore, when a public servant is accused of  an offence of taking gratification other than  legal remuneration for cluing or forbearing to  do an official act (Section 161 IPC) or as a  public servant abets offences punishable  under Sections 161 and 163 (Section 164 IPC)  or as public servant obtains a valuable thing  without consideration from person concerned  in any proceeding or business transacted by  such public servant (Section 165 TPC) 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  clearly denote that office which the public  servant misused or abused for corrupt motives  for which he is to he prosecuted and in respect  of which a sanction to prosecute him is

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necessary by the competent authority 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 authority who would  he able to judge the action of the public  servant before removing the bar, by granting  sanction, to the taking of the cognizance of  offences by the court against the public  servant. Therefore, it unquestionably follows  that the sanction to prosecute can he 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. Iqbal Ahmad v.  State of A.P.)( 1979 (2) SCR 1007). 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 fudge whether a serious offence  is committed or the prosecution is either  frivolous or speculative. That authority alone  would be competent to judge whether on the  facts alleged, there has been an abuse or  misuse of office held by the public servant.  That authority would he in a position to know  what was the power conferred on the office  which the public servant holds, how that  power could he 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 he by  the public servant against whom sanction is  sought which would indicate a hierarchy and  which would therefore, permit inference o  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

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whom sanction is sought from the office.

24.     Now if the public servant holds two offices  and he is accused of having abused one  and from which he is removed but  continues to hold the other which is  neither alleged to have been used nor  abused, is a sanction of the authority  competent to remove him from the office  which is neither alleged or shown to have  been abused or misused necessary? The  submission is that if the harassment of  the public servant by a frivolous  prosecution and criminal waste of his time  in law courts keeping him away from  discharging public duty, are the objects  underlying Section 6, the same would be  defeated if it is held that the sanction of  the latter authority is not necessary. The  submission does not commend to use. We  fail to see how the competent authority  entitled to remove the public servant from  an office which is neither alleged to have  been used or abused would be able to  decide whether the prosecution is  frivolous or tendentious. An illustration  was posed to the learned Counsel that a  Minister who is indisputably a public  servant greased his palms by abusing his  office as Minister, and then ceased to hold  the office before the court was called upon  to take cognizance of the offence against  him and therefore, sanction as  contemplated by Section 6 would not be  necessary; but if after committing the  offence and before the date of taking of  cognizance of the offence, he was elected  as a Municipal President in which  capacity he was a public servant under  the relevant Municipal law, and was  holding that office on the date on which  court proceeded to take cognizance of the  offence committed by him as a Minister,  would a sanction be necessary and that  too of that authority competent to remove  him from the office of the Municipal  President. The answer was- in affirmative.  But the very illustration would show that  such cannot be the law. Such an  interpretation of Section 6 would render it  as a shield to an unscrupulous public  servant. Someone interested in protecting  may shift him from one office of public  servant to another and thereby defeat the  process of law. Ode can legitimately  envisage a situation wherein a person may  hold a dozen different offices, each one  clothing him with the status of a public  servant under Section 21 IPC and even if  he has abused only one office for which  either there is a valid sanction to  prosecute him or he has ceased to hold  that office by the time court was called  upon to take cognizance, yet on this  assumption, sanction of 11 different

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competent authorities each of which was  entitled to remove him from 11 different  public offices would be necessary before  the court can take cognizance of the  offence committed by such public  servant/while abusing one office which he  may have ceased to hold. Such an  interpretation in contrary to all canons of  construction and leads to an absurd and  product which of necessity must be  avoided. Legislation must at all costs be  interpreted in such a way that it would  not operate as a rougue’s charter. (See  Davis & Sons Ltd. v. Atkins [1977]  Imperial Court Reports, 662)  

xx            xx                  xx

26. Therefore upon a true construction of  Section 6, it is implicit therein that sanction of  that competent authority alone would be  necessary which is competent to remove the  public servant from the office which he is  alleged to have misused or abused for corrupt  motive and for which a prosecution is intended  to be launched against him".

       Para 18 of the said judgment is also of considerable  importance. It reads as follows:

"18.    Re. (a) The 1947 Act was enacted, as its  long title shows, to make more effective  provision for the prevention of bribery and  corruption. Indisputably, therefore, the  provisions of the Act must receive such  construction at the hands of the court as  would advance the object and purpose  underlying the Act and at any rate not defeat  it. If the words of the statute are clear and  unambiguous, it is the plainest duty of the  court to give effect to the natural meaning of  the words used in the provision. The question  of construction arises only in the event of an  ambiguity or the plain meaning of the words  used in the statute would be self-defeating.  The court is entitled to ascertain the intention  of the legislature to remove the ambiguity by  construing the provision of the statute as a  whole keeping in view what was the mischief  when the statute was enacted and to remove  which the legislature enacted the statute. This  rule of construction is so universally accepted  that it need not be supported by precedents.  Adopting this rule of construction, whenever a  question of construction arises upon ambiguity  or where two views are possible of a provision,  it would be the duty of the court to adopt that  construction which would advance the object  underlying the Act, namely, to make effective  provision for the prevention of bribery and  corruption and at any rate not defeat it."  

       As is clear from a bare reading of the paragraph, this  Court adopted a construction which is based on the avoidance  of mischief rule. That being so, the plea that the effect of

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Section 6(2) of the Old Act was not kept in view does not merit  acceptance. Though a mere reference to a provision in all  cases may not in all cases imply consciousness as to the effect  of that provision the case at hand does not fall to that  category.  In this case not only was there reference to that  provision, but also this Court adopted a construction which  kept in view the object of the statute and the need for  interpretation in a particular way.  Foundation for the  interpretation is found in para 24 of the judgment. With  reference to Davis & Sons Ltd. v. Atkins (1977 Imperial Court  Report 662) it was  held that legislation must at all costs be  interpreted in such a way that it would not operate as a  rogue’s charter.   

       In Habibulla Khan v. State of Orissa and Anr. (1995 (2)  SCC 437) it was held was as follows: "12. However, it was contended that while the  Governor had given sanction to prosecute the  Chief Minister when he continued to be an  MLA in the case of R.S. Nayak v. A.R. Antulay,  the question whether the sanction was  necessary to prosecute an MLA as a public  servant did not arise. It was, therefore,  contended that although the offence alleged to  have been committed was during the  appellants’ tenure as Ministers, the appellants  continued to be MLAs and, therefore, as public  servants on the day of the launching of  prosecution and hence sanction of the  Governor under Article 192 of the Constitution  was necessary. This question has also been  answered in R.S. Nayak v. A.R. Antulay.  Referring to this Court’s decision in State  (S.P.E., Hyderabad) v. Air Commodore Kailash  Chand this Court held : (SCC pp. 208-09,  paras 25-26):

"We would however, like to make it  abundantly clear that if the two  decisions purport to lay down that  even if a public servant has ceased  to hold that office as public servant  which he is alleged to have abused  or misused for corrupt motives, but  on the date of taking cognizance of  an offence alleged to have been  committed by him as a public  servant which he ceased to be and  holds an entirely different public  office which he is neither alleged to  have misused or abused for corrupt  motives, yet the sanction of  authority competent to remove him  from such latter office would be  necessary before taking cognizance  of the offence alleged to have been  committed by the public servant  while holding an office which he is  alleged to have abused or misused  and which he has ceased to hold,  the decisions in our opinion, do not  lay down the correct law and cannot  be accepted as making a correct  interpretation of Section 6.

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Therefore, upon a true  construction of Section 6, it is  implicit therein that sanction of that  competent authority alone would be  necessary which is competent to  remove the public servant from the  office which he is alleged to have  misused or abused for corrupt  motive and for which a prosecution  is intended to be launched against  him."          The principle of immunity protects all acts which the  public servant has to perform in the exercise of the functions  of the Government.  The purpose for which they are performed  protects these acts from criminal prosecution.  However, there  is an exception.  Where a criminal act is performed under the  colour of authority but which in reality is for the public  servant’s own pleasure or benefit then such acts shall not be  protected under the doctrine of State immunity.                                     In other words, where the act performed under the colour  of office is for the benefit of the officer or for his own pleasure  Section 19(1) will come in. Therefore, Section 19(1) is time and  offence related.         This Court in Shreekantiah Ramayya Munipalli v. The  State of Bombay reported in (1955 (1) SCR 1177 at  pages1186-1187)  held as follows: "We have therefore first to concentrate on the  word "offence".  Now an offence seldom consists of a  single act. It is usually composed of several  elements and, as a rule, a whole series of acts  must be proved before it can be established. In  the present case, the elements alleged against  the second accused are, first, that there was  an "entrustment" and/or "dominion"; second,  that the entrustment and/or dominion was "in  his capacity as a public servant"; third, that  there was a "disposal"; and fourth, that the  disposal was "dishonest". Now it is evident that  the entrustment and/or dominion here were in  an official capacity, and it is equally evident  that there could in this case be no disposal,  lawful or otherwise, save by an act done or  purporting to be done in an official capacity.  Therefore, the act complained of, namely the  disposal, could not have been done in any  other way. If it was innocent, it was an official  act; if dishonest, it was the dishonest doing of  an official act, but in either event the act was  official because the second accused could not  dispose of the goods save by the doing of an  official act, namely officially permitting their  disposal; and that he did. He actually  permitted their release and purported to do it  in an official capacity, and apart from the fact  that he did not pretend to act privately, there  was no other way in which he could have done  it. Therefore, whatever the intention or motive  behind the act may have been, the physical  part of it remained unaltered, so if it was  official in the one case it was equally official in  the other, and the only difference would lie in  the intention with which it was done : in the

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one event, it would be done in the discharge of  an official duty and in the other, in the  purported discharge of it.  The act of abetment alleged against him  stands on the same footing, for his part in the  abetment was to permit the disposal of the  goods by the doing of an official act and thus  "wilfully suffer" another person to use them  dishonestly : section 405 of the Indian Penal  Code. In both cases, the "offence" in his case  would be incomplete without proving the  official act."  (underlined for emphasis)         The main contention advanced by Shri Venugopal  Learned senior counsel appearing  for the appellant is  that a  public servant who continues to remain so (on transfer) has  got to be protected as long as he continues to hold his office.  According to the learned counsel, even if the offending act is  committed by a public servant in his former capacity and even  if such a public servant has not abused his subsequent office  still such a public servant needs protection of Section 19(1) of  the Act.  According to the learned counsel, the judgment of  this Court in R.S. Nayak’s case (supra) holding that the  subsequent position of the public servant to be unprotected  was erroneous. According to the learned counsel, the public  servant needs protection all throughout as long as he  continues to be in the employment.

       The plea is clearly untenable as Section 19(1) of the Act is   time and offence related.         Section 19(1) of the Act has been quoted above.         The underlying principle of Sections 7, 10, 11, 13 and 15  have been noted above. Each of the above Sections indicate  that the public servant taking gratification (S.7), obtaining  valuable thing without consideration (S.11), committing acts of  criminal misconduct (S.13) are acts performed under the  colour of authority but which in reality are for the public  servant’s own pleasure or benefit. Sections 7, 10, 11, 13 and  15 apply to aforestated acts. Therefore, if a public servant in  his subsequent position is not accused of any such criminal  acts then there is no question of invoking the mischief rule.  Protection to public servants under Section 19(1)(a) has to be  confined to the time related criminal acts performed under the  colour or authority for public servant’s own pleasure or benefit  as categorized under Sections 7, 10, 11, 13 and 15. This is the  principle behind the test propounded by this court, namely,  the test of abuse of office.   

Further, in cases where offences under the Act are  concerned the effect of Section 19 dealing with question of  prejudice has also to be noted.  

In Balakrishnan Ravi Menon v. Union of India (SLP (Crl.)  No.3960 of 2002 decided on 17.9.2002) a similar plea was  rejected. It was inter alia held as follows:

"Hence, it is difficult to accept the contention  raised by U.R. Lalit, the learned senior counsel  for the petitioner that the aforesaid finding  given by this Court in Antulay’s case is obiter.

Further, under Section 19 of the PC Act,  sanction is to be given by the Government or  the authority which would have been

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competent to remove the public servant from  his office at the time when offence was alleged  to have been committed. The question of  obtaining sanction would arise in a case where  the offence has been committed by a public  servant who is holding the office and by  misusing or abusing the powers of the office,  he has committed the offence. The word ’office’  repeatedly used in Section 19 would mean the  ’office’ which the public servant misuses or  abuses by corrupt motive for which he is to be  prosecuted.  

               xx              xx                      xx

Clauses (a) and (b) of sub-section (1)  specifically provide that in case of a person  who is employed and is not removable from his  office by the Central Government or the State  Government, as the case may be, sanction to  prosecute is required to be obtained either  from the Central Government or the State  Government. The emphasis is on the words  "who is employed" in connected with the affairs  of the Union or the State Government. If he is  not employed then Section 19 nowhere  provides for obtaining such sanction. Further,  under sub-section (2) the question of obtaining  sanction is relatable to the time of holding the  office when the offence was alleged to have  been committed. In case where the person is  not holding the said office as he might have  retired, superannuated, discharged or  dismissed then the question of removing would  not arise."                  

The effect of sub-sections (3) and (4) of Section 19 of the  Act are of considerable significance. In Sub-Section (3) the  stress is on "failure of justice" and that too "in the opinion of  the Court". In sub-section (4), the stress is on raising the plea  at the appropriate time. Significantly, the "failure of justice" is  relatable to error, omission or irregularity in the sanction.  Therefore, mere error, omission or irregularity in sanction is  considered fatal unless it has resulted in failure of justice or  has been occasioned thereby. Section 19(1) is a matter of  procedure and does not go to root of jurisdiction as observed  in para 95 of the Narasimha Rao’s case (supra). Sub-section  (3)(c) of Section 19 reduces the rigour of prohibition. In Section  6(2) of the Old Act (Section 19(2) of the Act) question relates to  doubt about authority to grant sanction and not whether  sanction is necessary.                      In Halsbury’s Laws of England, 4th Edn., Vol.26 it is  stated: "A decision is given per incuriam when the  court has acted in ignorance of a previous  decision of its own or of a court of coordinate  jurisdiction which covered the case before it, in  which case it must decide which case to follow;  or when it has acted in ignorance of a House of  Lords decision, in which case it must follow  that decision; or when the decision is given in  ignorance of the terms of a statute or rule  having statutory force."

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       In Govt. of A.P. v. B. Satyanarayana Rao (2000 (4)  SCC 262) it has been held as follows: ""The rule of per incuriam can be applied  where a court omits to consider a binding  precedent of the same court or the superior  court rendered on the same issue or where a  court omits to consider any statute while  deciding that issue."

"Incuria" literally means "carelessness". In practice per  incuriam is taken to mean per ignoratium. English courts  have developed this principle in relaxation of the rule of stare  decisis. The "quotable in law" as held in Young v. Bristol  Aeroplane Co. Ltd. (1944 (2) All ER 293) is avoided and  ignored if it is rendered "in ignoratium of a statute or other  binding authority". Same has been accepted, approved and  adopted by this Court while interpreting Article 141 of the  Constitution which embodies the doctrine of precedents as a  matter of law. The above position was highlighted in State of  U.P. v. Synthetics and Chemicals Ltd. (1991 (4) SCC 139). To  perpetuate an error is no heroism. To rectify it is the  compulsion of the judicial conscience.     

The above position was highlighted in Babu Parasu  Kaikadi (dead) by Lrs. v. Babu (dead) thr. Lrs. (2004 (1) SCC  681 and Sunita Devi v. State of Bihar and Anr. (2005 (1) SCC  608)

       As regards applicability of Section 197 of the Code, the  position in law has been elaborately dealt with in several  cases.

In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr.  (AIR 1988 SC 257), this Court while emphasizing on the  balance between protection to the officers and the protection  to the citizens observed as follows:-                                                                                                                 "It is necessary to protect the public  servants in the discharge of their duties. In  the facts and circumstances of each case  protection of public officers and public  servants functioning in discharge of official  duties and protection of private citizens have  to be balanced by finding out as to what  extent and how far is a public servant working  in discharge of his duties or purported  discharge of his duties, and whether the  public servant has exceeded his limit. It is  true that Section 196 states that no  cognizance can be taken and even after  cognizance having been taken if facts come to  light that the acts complained of were done in  the discharge of the official duties then the  trial may have to be stayed unless sanction is  obtained. But at the same time it has to be  emphasised that criminal trials should not be  stayed in all cases at the preliminary stage  because that will cause great damage to the  evidence."

The protection given under Section 197 is to protect  responsible public servants against the institution of possibly

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vexatious criminal proceedings for offences alleged to have  been committed by them while they are acting or purporting to  act as public servants. The policy of the legislature is to afford  adequate protection to public servants to ensure that they are  not prosecuted for anything done by them in the discharge of  their official duties without reasonable cause, and if sanction  is granted, to confer on the Government, if they choose to  exercise it, complete control of the prosecution.  This  protection has certain limits and is available only when the  alleged act done by the public servant is reasonably connected  with the discharge of his official duty and is not merely a cloak  for doing the objectionable act.  If in doing his official duty, he  acted in excess of his duty, but there is a reasonable  connection between the act and the performance of the official  duty, the excess will not be a sufficient ground to deprive the  public servant from the protection. The question is not as to  the nature of the offence such as whether the alleged offence  contained an element necessarily dependent upon the offender  being a public servant, but whether it was committed by a  public servant acting or purporting to act as such in the  discharge of his official capacity. Before Section 197 can be  invoked, it must be shown that the official concerned was  accused of an offence alleged to have been committed by him  while acting or purporting to act in the discharge of his official  duties.  It is not the duty which requires examination so much  as the act, because the act can be performed both in the  discharge of the official duty as well as in dereliction of it.  The  act must fall within the scope and range of the official duties of  the public servant concerned.  It is the quality of the act which  is important and the protection of this section is available if  the act falls within the scope and range of his official duty.   There cannot be any universal rule to determine whether there  is a reasonable connection between the act done and the  official duty, nor is it possible to lay down any such rule. This  aspect makes it clear that the concept of Section 197 does not   immediately get attracted on institution of the complaint case.  

At this juncture, we may refer to P. Arulswami v. State of  Madras (AIR 1967 SC 776), wherein this Court held as under: "... It is not therefore every offence  committed by a public servant that requires  sanction for prosecution under Section 197(1)  of the Criminal Procedure Code; nor even  every act done by him while he is actually  engaged in the performance of his official  duties; but if the act complained of is directly  concerned with his official duties so that, if  questioned, it could be claimed to have been  done by virtue of the office, then sanction  would be necessary. It is quality of the act that  is important and if it falls within the scope  and range of his official duties the protection  contemplated by Section 197 of the Criminal  Procedure Code will be attracted. An offence  may be entirely unconnected with the official  duty as such or it may be committed within  the scope of the official duty. Where it is  unconnected with the official duty there can  be no protection. It is only when it is either  within the scope of the official duty or in  excess of it that the protection is claimable."  

Section 197(1) and (2) of the Code reads as under:  "197. (1) When any person who is or was a  Judge or Magistrate or a public servant not

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removable from his office save by or with the  sanction of the Government is accused of any  offence alleged to have been committed by him  while acting or purporting to act in the  discharge of his official duty, no Court shall  take cognizance of such offence except with  the previous sanction -  (a) in the case of person who is employed or,  as the case may be, was at the time of  commission of the alleged offence employed, in  connection with the affairs of the Union, of the  Central Government;  (b) in the case of a person who is employed or,  as the case may be, was at the time of  commission of the alleged offence employed, in  connection with the affairs of a State, of the  State Government.  

*               *                     * (2) No Court shall take cognizance of any  offence alleged to have been committed by any  member of the Armed Forces of the Union  while acting or purporting to act in the  discharge of his official duty, except with the  previous sanction of the Central Government."  

The section falls in the chapter dealing with conditions  requisite for initiation of proceedings. That is if the conditions  mentioned are not made out or are absent then no prosecution  can be set in motion. For instance no prosecution can be  initiated in a Court of Sessions under Section 193, as it  cannot take cognizance, as a court of original jurisdiction, of  any offence unless the case has been committed to it by a  Magistrate or the Code expressly provides for it. And the  jurisdiction of a Magistrate to take cognizance of any offence is  provided by Section 190 of the Code, either on receipt of a  complaint, or upon a police report or upon information  received from any person other than police officer, or upon his  knowledge that such offence has been committed. So far  public servants are concerned the cognizance of any offence,  by any court, is barred by Section 197 of the Code unless  sanction is obtained from the appropriate authority, if the  offence, alleged to have been committed, was in discharge of  the official duty. The section not only specifies the persons to  whom the protection is afforded but it also specifies the  conditions and circumstances in which it shall be available  and the effect in law if the conditions are satisfied. The  mandatory character of the protection afforded to a public  servant is brought out by the expression, ’no court shall take  cognizance of such offence except with the previous sanction’.  Use of the words, ’no’ and ’shall’ make it abundantly clear that  the bar on the exercise of power by the court to take  cognizance of any offence is absolute and complete. Very  cognizance is barred. That is the complaint, cannot be taken  notice of. According to Black’s Law Dictionary the word  ’cognizance’ means ’jurisdiction’ or ’the exercise of jurisdiction’  or ’power to try and determine causes’. In common parlance it  means ’taking notice of’. A court, therefore, is precluded from  entertaining a complaint or taking notice of it or exercising  jurisdiction if it is in respect of a public servant who is  accused of an offence alleged to have committed during  discharge of his official duty. Such being the nature of the provision the question is  how should the expression, ’any offence alleged to have been  committed by him while acting or purporting to act in the

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discharge of his official duty’, be understood? What does it  mean? ’Official’ according to dictionary, means pertaining to  an office, and official act or official duty means an act or duty  done by an officer in his official capacity. In B. Saha and Ors.  v. M. S. Kochar (1979 (4) SCC 177), it was held : (SCC pp.  184-85, para 17)  "The words ’any offence alleged to have been  committed by him while acting or purporting  to act in the discharge of his official duty’  employed in Section 197(1) of the Code, are  capable of a narrow as well as a wide  interpretation. If these words are construed  too narrowly, the section will be rendered  altogether sterile, for, ’it is no part of an  official duty to commit an offence, and never  can be’. In the wider sense, these words will  take under their umbrella every act  constituting an offence, committed in the  course of the same transaction in which the  official duty is performed or purports to be  performed. The right approach to the import of  these words lies between two extremes. While  on the one hand, it is not every offence  committed by a public servant while engaged  in the performance of his official duty, which  is entitled to the protection of Section 197 (1),  an act constituting an offence, directly and  reasonably connected with his official duty will  require sanction for prosecution under the  said provision."  

Use of the expression, ’official duty’ implies that the act or  omission must have been done by the public servant in the  course of his service and that it should have been in discharge  of his duty. The Section does not extend its protective cover to  every act or omission done by a public servant in service but  restricts its scope of operation to only those acts or omissions  which are done by a public servant in discharge of official  duty.  It has been widened further by extending protection to  even those acts or omissions which are done in purported  exercise of official duty. That is under the colour of office.  Official duty therefore implies that the act or omission must  have been done by the public servant in course of his service  and such act or omission must have been performed as part of  duty which further must have been official in nature. The  Section has, thus, to be construed strictly, while determining  its applicability to any act or omission in course of service. Its  operation has to be limited to those duties which are  discharged in course of duty. But once any act or omission  has been found to have been committed by a public servant in  discharge of his duty then it must be given liberal and wide  construction so far its official nature is concerned. For  instance a public servant is not entitled to indulge in criminal  activities. To that extent the Section has to be construed  narrowly and in a restricted manner. But once it is established  that act or omission was done by the public servant while  discharging his duty then the scope of its being official should  be construed so as to advance the objective of the Section in  favour of the public servant. Otherwise the entire purpose of  affording protection to a public servant without sanction shall  stand frustrated. For instance a police officer in discharge of  duty may have to use force which may be an offence for the  prosecution of which the sanction may be necessary. But if the  same officer commits an act in course of service but not in

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discharge of his duty and without any justification therefor  then the bar under Section 197 of the Code is not attracted. To  what extent an act or omission performed by a public servant  in discharge of his duty can be deemed to be official was  explained by this Court in Matajog Dobey v. H. C. Bhari (AIR  1956 SC 44) thus:  "The offence alleged to have been committed  (by the accused) must have something to do,  or must be related in some manner with the  discharge of official duty ... there must be a  reasonable connection between the act and  the discharge of official duty; the act must  bear such relation to the duty that the  accused could lay a reasonable (claim) but not  a pretended or fanciful claim, that he did it in  the course of the performance of his duty."

If on facts, therefore, it is prima facie found that the act  or omission for which the accused was charged had  reasonable connection with discharge of his duty then it must  be held to be official to which applicability of Section 197 of  the Code cannot be disputed.          

       The above position was highlighted in State of H.P. v.  M.P. Gupta (2004 (2) SCC 349), State of orissa through Kumar  Raghvendra Singh & Ors. v. Ganesh Chandra Jew (JT 2004(4)  SC 52), Shri S.K. Zutshi and Anr. v.  Shri Bimal Debnath and  Anr. (JT 2004(6) SC 323), K. Kalimuthu v. State by DSP (2005  (4) SCC 512) and Rakesh Kumar Mishra v. The State of Bihar  and Anr. (2006 (1) SCC 557).

       In Rakesh Kumar Mishra’s case (supra) it was inter alia  observed as follows:

"14. In S.A. Venkataraman v. The State (AIR  1958 SC 107) and in C. R. Bansi v. The State  of Maharashtra (1970 (3) SCC 537) this Court  has held 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."          Xx                      xx              xx 16. When the newly-worded section appeared  in the Code (Section 197) with the words  "when any person who is or was a public  servant" (as against the truncated expression  in the corresponding provision of the old Code  of Criminal Procedure, 1898) a contention was  raised before this Court in Kalicharan  Mahapatra v. State of Orissa (1998 (6) SCC  411) that the legal position must be treated as  changed even in regard to offences under the  Old Act and New Act also. The said contention  was, however, repelled by this Court wherein a  two-Judge Bench has held thus:

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"A public servant who committed an  offence mentioned in the Act, while  he was a public servant, can be  prosecuted with the sanction  contemplated in Section 197 of the  Act if he continues to be a public  servant when the court takes  cognizance of the offence. But if he  ceases to be a public servant by that  time, the court can take cognizance  of the offence without any such  sanction."

17. The correct legal position, therefore, is that  an accused facing prosecution for offences  under the Old Act or New Act cannot claim any  immunity on the ground of want of sanction, if  he ceased to be a public servant on the date  when the court took cognizance of the said  offences. But the position is different in cases  where Section 197 of the Code has application.  18. Section 197(1) provides that when any  person who is or was a public servant not  removable from his office save by or with the  sanction of the Government is accused of any  offence alleged to have been committed by him  while acting or purporting to act in the  discharge of his official duty, no Court shall  take cognizance of such offence except with  the previous sanction (a) in the case of a  person who is employed or, as the case may  be, was at the time of commission of the  alleged offence employed, in connection with  the affairs of the Union, of the Central  Government and (b) in the case of a person  who is employed or, as the case may be, was at  the time of commission of the alleged offence  employed, in connection with the affairs of a  State, or the State Government.  19. We may mention that the Law Commission  in its 41st Report in paragraph 15.123 while  dealing with Section 197, as it then stood,  observed:   "it appears to us that protection  under the Section is needed as  much after retirement of the public  servant as before retirement. The  protection afforded by the Section  would be rendered illusory if it were  open to a private person harbouring  a grievance to wait until the public  servant ceased to hold his official  position, and then to lodge a  complaint. The ultimate justification  for the protection conferred by  Section 197 is the public interest in  seeing that official acts do not lead  to needless or vexatious  prosecution. It should be left to the  Government to determine from that  point of view the question of the  expediency of prosecuting any  public servant".  

It was in pursuance of this observation that

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the expression ’was’ come to be employed after  the expression ’is’ to make the sanction  applicable even in cases where a retired public  servant is sought to be prosecuted."  

       In P.K. Pradhan v. State of Sikkim (2001 (6) SCC 704) it  has, inter alia, held as follows:

       "The legislative mandate engrafted in  sub-section (1) of Section 197 debarring a  court from taking cognizance of concerned in a  case where the acts complained of are alleged  to have been committed by a public servant in  discharge of his official duty or purporting to  be in the discharge of his official duty and  such public servant is not removable from  office save by or with the sanction of the  Government, touches the jurisdiction of the  court itself.  It is prohibition imposed by the  Statute from taking cognizance. Different tests  have been laid down in decided cases to  ascertain the scope and meaning of the  relevant words occurring in Section 197 of the  Code: "any offence alleged to have been  committed by him while acting or purporting  to act in the discharge of his official duty."  The  offence alleged to have been committed must  have something to do, or must be related in  some manner, with the discharge of official  duty.  No question of sanction can arise under  Section 197, unless the act complained of is an  offence; the only point for determination is  whether it was committed in the discharge of  official duty.  There must be a reasonable  connection between the act and the official  duty.  It does not matter even if the act  exceeds what is strictly necessary for the  discharge of the duty, as this question will  arise only at a later stage when the trial  proceeds on the merits.  What a court has to  find out is whether the act and the official duty  are so interrelated that one can postulate  reasonably that it was done by the accused in  the performance of official duty, though,  possibly I excess of the needs and  requirements of the situation."

       The question relating to the need of sanction under  Section 197 of the Code is not necessarily to be considered as  soon as the complaint is lodged and on the allegations  contained therein.  This question may arise at any stage of the  proceeding.  The question whether sanction is necessary or  not may have to be determined from stage to stage.  

       So far as the question about the non application of mind  in the sanction or absence of sanction is concerned, this has  been answered in the first question i.e. where the public  servant has  ceased to be a public servant since he has ceased  to hold the office where the alleged offence is  supposed to  have been taken place, the other questions really become  academic.   

A plea has been taken that charge sheet is a bundle of

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confusions and no definite material is placed on record to  substantiate the allegation of commission of any offence. This  assertion has been refuted by learned counsel for the  respondent-State with regard to various definite materials  indicating commission of offence. Particular reference has  been made to the following:  

Pages 396-397, Volume 3 discloses how Rs.9 crores were  recycled by Badal family through the accounts of K.S. Siddhu  into the project ORBIT Resort.  

Pages 398-399, 404-407, 416-420, 448 establishes facts  showing recycling of several crores of rupees with the aid of  Narottam Singh Dhillon, an NRI and close to Badal family.  Illegally earned money used to be deposited in the account of  Narottam Singh Dhillon who used to then get FDRs issued and  thereafter used to take loans against the FDRs. His bank  account shows operation during 1997-2002. This loan money  has been given to Parkash Singh Badal, S. Kaur and Sukhbir  Singh Badal as loans which have never been returned. This  recyling involved making of fake entries in the bank. There is  evidence showing taking of gratification in transfers, postings  and promotions.  

Pages 430-434 show purchases of property and shares in  the name of Satnam Singh and Namta Singh who were close to  Badal family and the transfer of their interest to SB in the year  2001.

Pages 489-494:  Evidence collected shows amassing of  benami property in the name of Shri Harbans Lal and his  family members who are close to Badal family.

Pages 499-502: reveals routing of black money into the  transport companies being run by the Badal family.

Pages 553-566 present a detailed analysis of the assets of  Badal family generated during the check period. Total   disproportionate asset is to the tune of Rs.78.39 crores. But  disproportion could not be explained. Present market worth is  over Rs.500 crores.

At pages 571-580 there is evidence to show flow of money  from abroad.

At page 582, it is specifically concluded that Parkash  Singh Badal colluded with his wife and son and other persons  and committed corruption at large scale and huge wealth and  money was amazed which is more than their disclosed income.

Page 611 onwards relates to only of the income and  wealth tax returns of Badal family during the check period.  Thus all relevant facts disclosing the offences committed by  Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal in  collusion with each other and with other persons is clearly set  out in the charge sheet and the same was submitted to the  Speaker along with relevant materials. The charge sheet is  neither jumbled nor unclear and sanctioning authority applies  his mind.   

As regards the plea relating to non-definite offence, a few  provisions of the Code need to be noted. Sections 173, 215  and 220 reads as follows: 173. Report of police officer on completion  of investigation.\027(1) Every investigation under

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this Chapter shall be completed without  unnecessary delay.   (2) (i) As soon as it is completed, the officer in  charge of the police station shall forward to a  Magistrate empowered to take cognizance of the  offence on a police report, a report in the form  prescribed by the State Government, stating\027   (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 has been released on his  bond and, if so, whether with or without  sureties;   (g)       whether he has been forwarded in custody  under section 170.   (ii) The officer shall also communicate, in such  manner as may be prescribed by the State  Government, the action taken by him, to the  person, if any whom the information relating to  the commission of the offence was first given.   (3) Where a superior officer of police has been  appointed under section 158, the report, shall,  in any case in which the State Government by  general or special order so directs, be submitted  through that officer, and he may, pending the  orders of the Magistrate, direct the officer in  charge of the police station to make further  investigation.   (4) Whenever it appears from a report forwarded  under this section that the accused has been  released on his bond, the Magistrate shall make  such order for the discharge of such bond or  otherwise as he thinks fit.   (5) When such report is in respect of a case to  which section 170 applies, the police officer shall  forward to the Magistrate along with the report\027   (a)      all documents or relevant  extracts thereof on which the  prosecution proposes to rely other  than those already sent to the  Magistrate during investigation;   (b)  the  statements recorded  under  section   161  of all  the persons   whom  the prosecution proposes to  examine as its witnesses.  

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(6) If the police officer is of opinion that any  part of any such statement is not relevant to the  subject-matter of the proceeding or that its  disclosure to the accused is not essential in the  interests of justice and is inexpedient in the  public interest, he shall indicate that part of the  statement and append a note requesting the  Magistrate to exclude that part from the copies to  be granted to the accused and stating his  reasons for making such request.   (7) Where the police officer investigating the  case finds it convenient so to do, he may  furnish to the accused copies of all or any of  the documents referred to in sub-section (5).   (8) Nothing in this section shall be deemed to  preclude further investigation in respect of an  offence after a report under sub-section (2) has  been forwarded to the Magistrate and, where  upon such investigation, the officer in charge of  the police station obtains further evidence, oral  or documentary, he shall forward to the  Magistrate a further report or reports regarding,  such evidence in the form prescribed; and the  provisions of sub-sections (2) to (6) shall, as far  as may be, apply in relation to such report or  reports as they apply in relation to a report  forwarded under sub-section (2).

215. Effect of errors.\027No error in stating  either the offence or the particulars required to  be stated in the charge, and no omission to  state the offence or those particulars, shall be  regarded at any stage of the case as material,  unless the accused was in fact misled by such  error or omission, and it has occasioned a  failure of justice. 220. Trial for more than one offence.\027(1) If,  in one series of acts so connected together as to  form the same transaction, more offences than  one are committed by the same person, he may  be charged with, and tried at one trial for, every  such offence. (2) When a person charged with one or more  offences of criminal breach of trust or dishonest  misappropriation of properly as provided in  sub-section (2) of section 212 or in sub-section  (1) of section 219, is accused of committing, for  the purpose of facilitating or concealing the  commission of that offence or those offences,  one or more offences of falsification of accounts,  he may be charged with, and tried at one trial  for, every such offence. (3) If the acts alleged constitute an offence  falling within two or more separate definitions  of any law in force for the time being by which  offences are defined or punished, the person  accused of them may be charged with, and tried  at one trial for, each of such offences.  (4) If several acts, of which one or more than  one would by itself or themselves constitute an  offence, constitute when combined a different  offence, the person accused of them may be  charged with, and tried at one trial for the

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offence constituted by such acts when  combined, and for any offence constituted by  any one, or more, or such acts. (5) Nothing contained in this section shall affect  section 71 of the Indian Penal Code (45 of  1860).

Section 72 IPC is also relevant.  Same reads as  follows: "72. Punishment of person guilty of one of  several offences, the judgment stating that  it is doubtful of which.--In all cases in which  judgment is given that a person is guilty of one  of several offences specified in the judgment,  but that it is doubtful of which of these  offences, he is guilty, the offender shall be  punished for the offence for which the lowest  punishment is provided if the same  punishment is not provided for all".

       The report in terms of Section 173 of the Code is in the  nature of information to the Magistrate. Statutory requirement  is complied with if the requisite information is given. It  purports to be an opinion and therefore elaborate details are  not necessary. In K. Veeraswami v. Union of India and Ors.  (1991 (3) SCC 655) it was held as follows: "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 Section  170. As observed by this Court in Satya Narain  Musadi and Ors. v. State of Bihar (1980 (3)  SCC 152); that the statutory requirement of  the report under Section 173(2) would be  complied with if the various details prescribed  therein are included in the report. This report  is an intimation to the magistrate that upon  investigation into a cognizable offence the  investigating officer has been able to procure  sufficient 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 witnesses 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

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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 by adducing  acceptable evidence."

       Mere non-description of the offences in detail is really not  material. At the stage of framing charge it can be urged that  no offence is made out.  With reference to the absence of allegations under  Sections 8 and 9 of the Act, it is submitted whether the charge  sheet has reference to any particular material referred to in it  and the relevance of it is to be  considered at the time when  the charge is framed.  It  would not be desirable to analyse  minutely the materials as at that stage the Court is primarily  concerned with the question as to whether charge is to be  framed in respect of any offence and whether there prima facie  appears existence of any material and not the sufficiency of  the materials. Therefore, the appellants’ stand that the charge  sheet does not refer to any particular material cannot be  accepted, more particularly, in view of the specific materials  referred to by learned counsel for the respondent-State.

It is the stand of the State that the appellant-Parkash  Singh Badal was the fulcrum around which the entire  corruption was woven  by the members of his family and  others and it was his office of Chief Minister-ship  which had  been abused. Therefore, Sections 8 and 9 of the Act would not  be applicable to him and would apply only to his wife, son and  others. It is the stand of the appellants that in the documents  filed only Section 13(1) has been only mentioned and not the  exact alleged infraction. It is to be noted that the offence of  criminal mis-conduct is defined in Section 13. Five clauses  contained in the said provision represent different types of  infraction under which the offence can be said to have been  committed. If there is material to show that the alleged offence  falls in any of the aforesaid categories, it is not necessary at  the stage of filing of the charge sheet to specify as to which  particular clause covers the alleged offence. It is the stand of  the respondent-State that clauses (a), (b) (d) and (e) are all  attracted and not clause (c). Therefore, the sanctioning  authority has rightly referred to Section 13(1) and that does  not make the sanction order vulnerable.  

The sanctioning authority is not required to separately  specify each of the offence against the accused public servant.  This is required to be done at the stage of framing of charge.  Law requires that before the sanctioning authority materials  must be placed so that the sanctioning authority can apply his  mind and take a decision.  Whether there is an application of  mind or not would depend on the facts and circumstances of  each case and there cannot be any generalized guidelines in  that regard.  

The sanction in the instant case related to offences  relatable to Act. There is a distinction between the absence of  sanction and the alleged invalidity on account of non  application of mind. The former question can be agitated at  the threshold but the latter is a question which has to be  raised during trial.  

Great emphasis has been led on certain decisions of this  Court to show that even in relation to offences punishable  under Section 467 and 468 sanction is necessary. The  foundation of the position has reference to some offences in

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Rakesh Kumar Mishra’s case (supra). That decision has no  relevance because ultimately this Court has held that the  absence of search warrant was intricately with the making of  search and the allegations about alleged offences had their  matrix on the absence of search warrant and other  circumstances had a determinative role in the issue. A   decision is an authority for what it actually decides. Reference  to a particular sentence in the context of the factual scenario  cannot be read out of context.  

The offence of cheating under Section 420 or for that  matter offences relatable to Sections 467, 468, 471 and 120B  can by no stretch of imagination by their very nature be  regarded as having been committed by any public servant  while acting  or purporting to act in discharge of official duty.  In such cases,  official status only provides an opportunity for  commission of the offence.  

In Baijnath v. State of M.P. (1966 SCR 210) the position  was succinctly stated as follows: "\005\005..it is the quality of the Act that is  important and if it falls within the scope and  range of his official duty the protection  contemplated by Section 197 of the Code of  Criminal Procedure will be attracted."

So far as the appellant Sukhbir Singh Badal is  concerned, the stand is that he being a member of the  Parliament is a public servant and cannot be charged with  offences under Sections 8 and 9 of the Act. His contention is  that Sections 8, 9, 12, 14 and 24 of the  Act are applicable to  private persons and not to public servants. The opening word  of Sections 8 and 9 is "whoever". The expression is very wide  and would also cover public servants accepting gratification as  a motive or reward for inducing any other public servant by  corrupt or illegal means. Restricting the operation of the  expression by curtailing  the ambit of Sections 8 and 9 and  confining to private persons would not reflect the actual  legislative intention.   

If Section 8 is analytically dissected then it would read as  below: (i)     Whoever

(ii)    Accepts or obtains gratification from any  person

(iii)   For inducing any public servant (by corrupt or  illegal means)

(iv)    To render or attempt to render any services or  disservice (etc.)

(v)     With any public servant (etc.)

So far as Section 9 is concerned the only difference is  that inducement is "by the exercise of personal influence". The  above analysis shows that public servants may be involved.

       Sections 8 and 9 of the  Act correspond to Sections 162  and 163 of IPC. During the currency of Old Act, Sections 161  to 165A of IPC were operating. This  Court had occasion to  examine Section 5(1)(d) of the Old Act and Sections 161 and  162 IPC. It has been held that they constitute different

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offences.  [See Ram Krishan and Anr. v. State of Delhi (AIR  1956 SC 476)]

       In view of the above, it would not be permissible to  contend that a public servant would be covered by Section  13(1)(d) (similar to section 5(1)(d) of Old Act) and therefore the  public servant would not be covered by Sections 8 and 9 of the   Act. The offences under Section 13(1)(d) and the offences  under Sections 8 and 9 of  Act are different and separate.  Assuming, Section 13(1)(d)(i) covers public servants who  obtain for ’himself or for any other person’ any valuable thing  or pecuniary advantage by corrupt or illegal means, that would  not mean that he would not fall within the scope of Sections 8  and 9. The ingredients are different. If a public servant accepts  gratification for inducing any public servant to do or to forbear  to do any official act, etc. then he would fall in the net of  Sections 8 and 9. In Section 13(1)(d) it is not necessary to  prove that any valuable thing or pecuniary advantage has  been obtained for inducing any public servant.

       Another difference is that Section 13(1)(d) envisages  obtaining of any valuable thing or pecuniary advantage. On  the other hand Sections 8 and 9 are much wider and  envisages taking of "any gratification whatever". Explanation  (b) of Section 7 is also relevant.                    The word ’gratification’ is not restricted to pecuniary  gratifications or to gratifications estimable in money.  Thus,  Sections 8 and 9 are wider than Section 13(1)(d) and clearly  constitute different offences.  

       Section 24 envisages the making of a statement by a  person in any proceeding against the public servant for an  offence under Sections 7 to 11 or Sections 13 and 15. It is  clear from Section 24 that there can be a proceeding against  public servant for which offence under Sections 7 to 11 which  per se includes Sections 8 and 9. On the face of this provision,  it cannot be contended that a public servant cannot be  proceeded against Sections 8 and 9.     Great emphasis has been led by the appellants on some  factual scenario to show that the complainant was close to  incumbent Chief Minister and he has been rewarded  subsequently for making the complaint. In essence, the plea is  that mala fides are involved.  This allegation of mala fides is  also linked with the so called conferment of power with the  particular police station at Mohali  and conferment of  jurisdiction on a particular Special Judge by Notification dated   17.11.2003.  

A plea of mala fides has not only to be clearly pleaded but  specifically proved by adducing cogent evidence. Mere  allegation and suspicions would not be sufficient. The person  against whom mala fides conduct is attributed is interestingly  not a party in the proceedings.  

       So far as the allegation that political opponent had lodged   the complaint is concerned, that itself is not sufficient for the  Court to interfere. When the allegation is made, investigation  is undertaken to find out whether there is any substance in  the allegation. Merely because the political opponent was the  complainant that does not per se lead to an inference that the  complaint has to be thrown out or that no notice should be  taken thereof.

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       Before dealing further whether the submissions ought to  prevail, the legal principles governing the registration of a  cognizable offence and the investigation arising thereon need  to be noted. Section 154(1) is the relevant provision regarding  the registration of a cognizable offence and that provision  reads as follows: "154. Information in cognizable cases.-(1)  Every information relating to the commission  of a cognizable offence, if given orally to an  officer in charge of a police station, shall be  reduced to writing by him or under his   direction, and be read over to the informant;  and every such information, whether given in  writing or reduced to writing as aforesaid, shall  be signed by the person giving it, and the  substance thereof shall be entered in a book to  be kept by such officer in such form as the  State Government may prescribe in his  behalf".

       The above sub-section corresponds to Section 154 of the  Old Code (Act of 1898 to which various amendments were  made by Act 26 of 1955 and also to Section 154 of the Code of  Criminal Procedure of 1882 (Act 10 of 1882) except for the  slight variation in that expression ’local government’ had been  used in 1882 in the place of ’State Government’. Presently, on  the recommendations of the Forty-first Report of the Law  Commission, the sub-sections (2) and (3) have been newly  added but we are not concerned with those provisions as they  are not relevant for the purpose of the disposal of this case  except for making some reference at the appropriate places, if  necessitated. Section 154(1) regulates the manner of recording  the first information report relating to the commission of a  cognizable offence.  

       The legal mandate enshrined in Section 154 (1) is that  every information relating to the commission of a ’cognizable  offence’ (as defined under section 2 (c) of the Code) if given  orally ( in which case it is to be reduced into writing) or in  writing to "an officer incharge of a police station" (within the  meaning of Section 2(o) of the Code) and signed by the  informant should be entered in a book to be kept by such  officer in such form as the State Government may prescribe  which form is commonly called as "First Information Report"  and which act of entering the information in the said form is  known as registration of a crime or a case.

       At the stage of registration of a crime or a case on the  basis of the information disclosing a cognizable offence in  compliance with the mandate of Section 154 (1) of the Code,  the concerned police officer cannot embark upon an enquiry  as to whether the information, laid by the informant is reliable  and genuine or otherwise and refuse to register a case on the  ground that the information is not reliable or credible. On the  other hand, the officer in charge of a police station is  statutorily obliged to register a case and then to proceed with  the investigation if he has reason to suspect the commission of  an offence which he is empowered under Section 156 of the  Code to investigate, subject to the proviso to Section 157  thereof. In case, an officer in charge of a police station refuses  to exercise the jurisdiction vested in him and to register a case  on the information of a cognizable offence reported and  thereby violates the statutory duty cast upon him, the person  aggrieved by such refusal can send the substance of the  information in writing and by post to the Superintendent of

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Police concerned who if satisfied that the information  forwarded to him discloses a cognizable offence, should either  investigate the case himself or direct an investigation to be   made by any police officer subordinate to him in the manner  provided by sub-section (3) of Section 154 of the Code.    

It has to be noted that in Section 154(1) of the Code, the  legislature in its collective wisdom has carefully and cautiously  used the expression "information" without qualifying the same  as in Section 41(1)(a) or (g) of the Code wherein the  expressions, "reasonable complaint" and "credible information"  are used. Evidently, the non-qualification of the word  "information" in Section 154(1) unlike in Section 41(1)(a) and  (g) of the Code may be for the reason that the police officer  should not refuse to record an information relating to the  commission of a cognizable offence and to register a case  thereon on the ground that he is not satisfied with the  reasonableness or credibility of the information. In other  words, ’reasonableness’ or ’credibility’ of the said information  is not a condition precedent for registration of a case. A  comparison of the present Section 154 with those of the earlier  Codes will indicate that the legislature had purposely thought  it fit to employ only the word "information" without qualifying  the said word. Section 139 of the Code of Criminal Procedure  of 1861 (Act XXV of 1861) passed by the Legislative Council of  India read that ’every complaint or information’ preferred to an  officer incharge of a police station should be reduced into  writing which provision was subsequently modified by Section  112 of the Code of 1872 (Act X of 1872) which thereafter read  that ’every complaint’ preferred to an officer incharge of a  police station shall be reduced in writing. The word ’complaint’  which occurred in previous two Codes of 1861 and 1872 was  deleted and in that place the word ’information’ was used in  the Codes of 1882 and 1898 which word is now used in  Sections 154, 155, 157 and 190(c) of the Code.  An overall  reading of all the Codes makes it clear that the condition  which is sine-qua-non for recording a First Information Report  is that there must be an information and that information  must disclose a cognizable offence.  It is, therefore, manifestly clear that if any information  disclosing a cognizable offence is laid before an officer incharge  of a police station satisfying the requirements of Section 154(1)  of the Code, the said police officer has no other option except  to enter the substance thereof in the prescribed form, that is  to say, to register a case on the basis of such information.  In this connection, it may be noted that though a police  officer cannot investigate a non-cognizable offence on his own  as in the case of cognizable offence, he can investigate a non- cognizable offence under the order of a Magistrate having  power to try such non-cognizable case or commit the same for  trial within the terms under Section 155(2) of the Code but  subject to Section 155(3) of the Code. Further, under sub- section (4) to Section 155, where a case relates to two offences  to which at least one is cognizable, the case shall be deemed to  be a cognizable case notwithstanding that the other offences  are non-cognizable and, therefore, under such circumstances  the police officer can investigate such offences with the same  powers as he has while investigating a cognizable offence.  The next key question that arises for consideration is  whether the registration of a criminal case under Section  154(1) of the Code ipso facto warrants the setting in motion of  an investigation under Chapter XII of the Code.  Section 157(1) requires an Officer Incharge of a Police  Station who ’from information received or otherwise’ has  reason to suspect the commission of an offence-that is a

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cognizable offence-which he is empowered to investigate under  Section 156, to forthwith send a report to a Magistrate  empowered to take cognizance of such offence upon a police  report and to either proceed in person or depute any one of his  subordinate Officers not being below such rank as the State  Government may, by general or special order, prescribe in this  behalf, to proceed to the spot, to investigate the facts and  circumstances of the case and if necessary, to take measures  for the discovery and arrest of the offender. This provision is  qualified by a proviso which is in two parts (a) and (b). As per  Clause (a) the Officer Incharge of a Police Station need not  proceed in person or depute a subordinate officer to make an  investigation on the spot if the information as to the  commission of any such offence is given against any person by  name and the case is not of a serious nature. According to  Clause (b), if it appears to the Officer Incharge of a Police  Station that there is no sufficient ground for entering on an  investigation, he shall not investigate the case. Sub-section (2)  of Section 157 demands that in each of the cases mentioned in  Clauses (a) and (b) of the proviso to Sub-section (1) of Section  157, the Officer Incharge of the Police Station must state in  his report, required to be forwarded to the Magistrate his  reasons for not fully complying with the requirements of Sub- section (1) and when the police officer decides not to  investigate the case for the reasons mentioned in Clause (b) of  the proviso, he in addition to his report to the Magistrate,  must forthwith notify to the informant, if any, in such manner  as may be prescribed by the State Government, the fact that  he will not investigate the case or cause the case to be  investigated. Section 156(1) which is to be read in conjunction  with Section 157(1) states that any Officer Incharge of a Police  Station may without an order of a Magistrate, investigate any  cognizable case which a Court having jurisdiction over the  local area within the limits of the concerned police station  would have power to enquire into or try under provisions of  Chapter XIII. Section 156(3) vests a discretionary power on a  Magistrate empowered under Section 190 to order an  investigation by a police officer as contemplated in Section  156(1). It is pertinent to note that this provision does not  empower a Magistrate to stop an investigation undertaken by  the police. (See State of Bihar and Anr. v. J.A.C. Saldanha and  Ors. (1980 (1) SCC 554) In that case, power of the Magistrate  under Section 156(3) to direct further investigation after  submission of a report by the investigating officer under  Section 173(2) of the Code was dealt with. It was observed as  follows:  "The power of the Magistrate under Section  156(3) to direct further investigation is clearly  an independent power and does not stand in  conflict with the power of the State  Government as spelt out hereinbefore. The  power conferred upon the Magistrate under  Section 156(3) can be exercised by the  Magistrate even after submission of a report by  the investigating officer which would mean  that it would be open to the Magistrate not to  accept the conclusion of the investigating  officer and direct further investigation. This  provision does not in any way affect the power  of the investigating officer to further investigate  the case even after submission of the report as  provided in Section 173(8)."  

The above position has been highlighted in State of Haryana  and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335).

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                 In State of Punjab and Anr. v Gurdial Singh and Ors.  (1980 (2) SCC 471) it was observed as follows: "\005..If the use of the power is for the  fulfilment of a legitimate object the actuation  or catalysation by malice is not legicidal."                            At this stage it needs to be clarified that the obligation to  register a case is not to be confused with the remedy if same is  not registered. Issue of the remedy has been decided by this  Court in several cases. (See Gangadhar Janardan Mhatre v.  State of Maharashtra and Ors. (2004 (7) SCC 768)

       The ultimate test therefore is whether the allegations  have any substance. An investigation should not be shut out  at the threshold because a political opponent or a person with  political difference raises an allegation of commission of  offence. Therefore, the plea of mala fides as raised cannot be  maintained.  

       So far as  conferment of jurisdiction with the police  station over the whole State is concerned, it appears that the  same was created on 31.10.1994 by the then Government of   Chandigarh and by order dated 20.4.1995 the office of  Superintendent of Police, Vigilance Flying Squad-I/Criminal  Investigation Agency, Chandigarh was shifted to Police  Station, Mohali. This order continued to operate subsequently.   As rightly contended by learned counsel for the respondent- State,  the fresh notification was issued creating some  more  police stations qua other districts. It is pointed out that PS  Mohali falls within the Ropar district and within the area of  Special Judge, Ropar as was specified in consultation with the  Punjab and Haryana High Court.  The Special Judges are  transferred by the High Court and, therefore, the allegation of  choosing any Special Judges with oblique motive is clearly  without any substance. The notification regarding the re- organization of the police station with Police Station, Mohali  having jurisdiction over the whole State of Punjab was notified  on 19.12.2002.  

       At this juncture, it is relevant to note that allegations of  impropriety were made because of the Notification dated  17.11.2003 relating to jurisdiction of the Special Judge. A few  relevant aspects need to be noted at this juncture. The Court  of Special Judge, Ropar was created by Notification dated  5.1.1990 of the State Government which was issued in  consultation with the High Court for the area of Ropar District.  Another Notification was issued on 5.9.2000 in consultation  with the High Court. By this Notification, Sessions Judges in  the State of Punjab were appointed as Special Judges within  their respective districts. The Notification dated 31.10.1994  creating P.S., Chandigarh  with Statewide jurisdiction which  was shifted to P.S., Mohali by order dated 20.4.1995 was  already in existence when Sessions Judges were made Special  Judges. There is no dispute about this fact.  

       The controversy revolves around the Notification dated  19.10.2002 regarding P.S., Mohali with Statewide jurisdiction.  According to learned counsel for the respondent-State it  represents a continuity and there was no new creation. So far  as the Notification dated 17.11.2003 is concerned,  undisputedly, the expression used is "appoint". It was clarified  that though the said expression has been used, it did not  actually mean appointment of a Sessions Judge and First  Additional Sessions Judge, Ropar as Special Judges. They

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were already appointed and designated as stated in the  Notification itself. What was intended related to allocation of  cases registered at P.S., Mohali to the existing Courts of  Special Judges, Ropar. There is also no dispute that P.S.,  Mohali falls within the area of district Ropar over which  Special Judges, Ropar had jurisdiction as approved by the  High Court.  

       Stand of learned counsel for the State is that since the  impugned notification allocated certain cases to Courts of  Special Judges already established with the consultation with  the High Court, no further consultation was required.  

       It is pointed out that said re-allocation does not impinge  upon the control of the High Court  as envisaged by Article  235 of the Constitution.

       There is no doubt that the control of the High Court is  comprehensive, exclusive and effective and it is to subserve  the basic feature of Constitution, i.e. independence of  judiciary. [See High Court of Judicature for Rajasthan v.  Ramesh Chand Paliwal and Anr. (1998 (3) SCC 72) and  Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta  Satapathy (dead) by Lrs. and Anr. ( 1999 (7) SCC 725)]

       Articles 233 and 234 of the Constitution are not attracted  because this is not a case where appointment of persons to be  Special Judges or their postings to a particular Special Court  is involved. It is however factually conceded that the  expression "notwithstanding the jurisdiction of other Special  Judges in the State of Punjab"  is not necessary.  

       Once group of cases are allocated to Special Court,  consequentially other Special Courts cannot deal with them.  Use of the afore-said expression was really un-necessary.  We  consider it to be severable and so direct.  

       At this juncture, it is to be noted that learned counsel for  the State submitted that to avoid any fear of forum shopping,  the State is even willing to abide by the decision of this Court  if the trial takes place in Chandigarh or wherever this Court  directs, and to show that the State has no intention to the trial  being conducted at a particular place and to prove its  transparency the stand is taken. We do not think it necessary  to so direct, because the expression "notwithstanding the  jurisdiction of other Special Judges in the State of Punjab" has  already been stated to be unnecessary and would be of no  consequence. That being so, the plea in that regard as raised  by the appellants also fails.  

       Since all the challenges have been held to be without  substance, the inevitable result is that the appeals deserve to  be dismissed which we direct.