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PETITIONER: R.BALAKRISHNA PILLAI

       Vs.

RESPONDENT: STATE OF KERALA & ANR.

DATE OF JUDGMENT05/12/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SEN, S.C. (J)

CITATION:  1996 AIR  901            1996 SCC  (1) 478  JT 1995 (9)   580        1995 SCALE  (7)255

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Special leave granted.      Two  questions  were  raised  before  the  High  Court, namely, (i)  whether sanction  under Section  197(1) of  the Code of  Criminal Procedure  (hereinafter called the ’Code’) was required  for the  prosecution under  the Prevention  of Corruption  Act,  1947,  and  (ii)  whether  sanction  under Section  6   of  that   Act  was  a  pre-requisite  for  the prosecution of  an accused  public servant  under Section  5 thereof even  when such  public servant  had ceased  to be a public servant  on the  date of  taking  cognizance  of  the offence by  the Special  Judge? In  order to  appreciate the exact point  arising in this case and raised in this appeal, it is necessary to refer to the charge framed by the learned Enquiry Commissioner  and Special Judge, Thiruvananthapuram. The charge  framed is in two parts. The first part is to the effect that  the accused  Shri R.  Balakrishna Pillai  while functioning  as  Minister  for  Electricity,  Government  of Kerala, between  May, 1982  and 5.6.85  and  his  co-accused while functioning as Technical Member/Chairman of the Kerala State Electricity  Board, Thiruvananthapuram, between 1.2.84 and 30.11.85,  in their  capacity as  such  public  servants during the  period from July, 1984 to November, 1985 entered into a  criminal conspiracy to sell electricity to the State of Karnataka  to be supplied to M/s. Graphite India Limited, Bangalore, Karnataka  State,  without  the  consent  of  the Government of  Kerala, which  was an  illegal act  under the provisions of  the Electricity  (Supply) Act,  1948 and  the Kerala Electricity  Board Rules and in pursuance of the said conspiracy he  abused his  official position  and  illegally sold  12241440   units  to  M/s.  Graphite,  India  Limited, Karnataka  (the   Karnataka  Party)  during  the  months  of October, 1984  and May,  1985 and  thereby caused  the  said private party  to obtain  undue pecuniary  advantage to  the tune of  Rs.19,58,630.40 and more by way of resultant profit

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to the  industry and thereby committed an offence punishable under Section  120-B, Indian  Penal Code.  The second charge relates to  the commission  of an  offence punishable  under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act  with which  we are  not concerned because it was not  contended before  us by  counsel for  the appellant that sanction  under section  197 of  the Code  was required insofar as that charge was concerned.      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, of the State Government.      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 prosecutions. 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 the expression ’was’ came 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.      A Constitution Bench of this Court in M.Karunanidhi vs. Union of  India (1979  (3) SCR 254) was required to consider whether a  Chief Minister  was a  public servant  within the meaning of  Section 21  of the Indian Penal Code and Section 197 of  the Code. This Court referred to the decision of the High Court  of Bombay  in Namdeo  Kashinath  Aher  vs.  H.G. Vartak &  Anr. (AIR  1970  Bombay  385)  and  extracted  the following passage therefrom:      "Whatever be  the practical  and  actual      position, the  fact remains  that it  is      the  Governor   who   can   accept   the      resignation of  the Ministry or Minister      and it  is the  Governor again  who  can      dismiss  or  remove  the  Minister  from      office.  Under   Section  3(60)  of  the      General  Clauses  Act,  1897,  the  word      ’State  Government’  has  been  defined.      Clause   (c)   of   Section   3(60)   is      applicable  to  the  present  case  and,      therefore, the  State Government  is  to      mean the Governor for the purpose of the      present case.  The result, therefore, is      that accused  No.1 is  a public  servant      who can  be said to be removable only by      the State  Government,  meaning  thereby

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    the Governor,  and I  do  not  find  any      difficulty in  coming to  the conclusion      that the  second requirement  of Section      197, Cr.P.C.  also is fully satisfied as      far as accused No.1 is concerned."      Taking note  of the  provisions of Article 167 (Article 164 for  Ministers), it  was  pointed  out  that  the  Chief Minister is  paid from  public exchequer  for  performing  a public duty  and is,  therefore, a public servant within the meaning of  Section 197 of the Code. So also a Minister of a State is  paid from  its public  exchequer, he  is paid  for doing  the   duty  entrusted  to  him  as  a  Minister  and, therefore, on  the analogy  of the  observations relating to the Chief  Minister, the  Minister must also be held to be a public servant.  Since he  is appointed  or dismissed by the Governor, he  would fall  within the  expression  ’a  public servant not  removable from  his office  save by or with the sanction of the Government’. In the instant case, as pointed out earlier,  by virtue  of the  provisions in  the  General Clauses  Act,  1897  the  expression  ’Government’  used  in Section 197  would mean  the Governor in the case of a Chief Minister or a Minister. That being so, we are of the opinion that a  Minister would  be entitled  to  the  protection  of Section 197(1) of the Code.      The  next  question  is  whether  the  offence  alleged against the  appellant can be said to have been committed by him while  acting or  purporting to  act in the discharge of his official  duty. It  was contended by the learned counsel for the  State that  the  charge  of  conspiracy  would  not attract Section  197 of  the Code for the simple reason that it is  no part  of the  duty of a Minister while discharging his official  duties to enter into a criminal conspiracy. In support of  his contention, he placed strong reliance on the decision of  this Court  in Harihar  Prasad vs. The State of Bihar (1972  Cr1.L.J. 707  = 1972  (3) SCC  89). He drew our attention  to  the  observations  in  paragraph  74  of  the judgment where  the Court,  while considering  the  question whether the  acts complained of were directly concerned with the  official  duties  of  the  concerned  public  servants, observed that  it was  no duty  of a public servant to enter into a  criminal conspiracy and hence want of sanction under Section 197  of the Code was, no bar to the prosecution. The question whether  the acts  complained of had a direct nexus or relation  with the  discharge of  official duties  by the concerned public  servant would  depend on the facts of each case. There  can be  no general  proposition  that  whenever there is  a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1) of the  Code would  have no  application. Such  a view would render Section  197(1) of  the Code specious. Therefore, the question would  have to  be examined  in the  facts of  each case. The observations were made by the court in the special facts of that case which clearly indicated that the criminal conspiracy entered  into  by  the  three  delinquent  public servants had  no relation  whatsoever  with  their  official duties and,  therefore, the  bar of  Section 197(1)  was not attracted. It must also be remembered that the said decision was rendered  keeping in  view Section  197(1), as  it  then stood, but  we do not base our decision on that distinction. Our attention  was next invited to a three-Judge decision in B. Saha  & Ors.  vs. M.S.  Kochar (1979  (4) SCC  177).  The relevant  observations  relied  upon  are  to  be  found  in paragraph 17  of the  judgment. It  is pointed  out that the words ’any  offence alleged  to have  been committed  by him while acting  or purporting  to act  in the discharge of his

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official duty’  employed Section  197(1) of  the  code,  are capable of both a narrow and a wide interpretation but their Lordships pointed  out  that  if  they  were  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". At the same time, if they were too widely  construed, they  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 is  purported to be performed. The right approach, it was pointed out,  was to see that the meaning of this expression lies between  these 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.  Only an  act  constituting  an offence directly  or reasonably  connected with his official duty will  require  sanction  for  prosecution.  To  put  it briefly, it is the quality of the act that is important, and if it  falls within the scope of the afore-quoted words, the protection of  Section 197  will have  to be extended to the concerned public  servant. This  decision, therefore, points out what  approach the  Court should  adopt while construing Section 197(1)  of the Code and its application to the facts of the case on hand.      In the  present case,  the appellant  is  charged  with having entered  into a  criminal  conspiracy  with  the  co- accused  while  functioning  as  a  Minister.  The  criminal conspiracy  alleged  is  that  he  sold  electricity  to  an industry in  the State  of Karnataka ’without the consent of the Government  of Kerala which is an illegal act’ under the provisions of  the Electricity  (Supply) Act,  1948 and  the Kerala  Electricity   Board  Rules  framed  thereunder.  The allegation is  that he  in pursuance  of  the  said  alleged conspiracy abused  his official  position and illegally sold certain  units   to  the   private  industry   in  Bangalore (Karnataka) which  profited the private industry to the tune of Rs.19,58,630.40  or more  and it  is, therefore,  obvious that the  criminal conspiracy  alleged against the appellant is that while functioning as the Minister for Electricity he without the  consent of  the Government  of Kerala  supplied certain units  of  electricity  to  a  private  industry  in Karnataka. Obviously,  he did  this in  the discharge of his duties as  a Minister.  The allegation  is that  it  was  an illegal act  inasmuch as  the consent  of the  Government of Kerala was  not obtained before this arrangement was entered into and  the supply  was effected.  For that  reason, it is said that  he had  committed an  illegality and hence he was liable to  be punished for criminal conspiracy under Section 120-B, I.P.C.  It is,  therefore, clear from the charge that the act  alleged is  directly and  reasonably connected with his official  duty  as  a  Minister  and  would,  therefore, attract the protection of Section 197(1) of the Act.      For the above reasons, we are unable to accept the view taken by the High Court of Kerala insofar as the requirement of sanction  under Section  197(1) of the Code is concerned, in relation  to  the  charge  of  criminal  conspiracy.  We, therefore, allow  this appeal, set aside the decision of the High Court  insofar as  that charge  is concerned,  and hold that sanction  under Section  197(1) of  the Code was a sine qua non.  As pointed out earlier so far as the second charge under Section  5(2) read with Section 5(1) of the Prevention of Corruption  Act is  concerned, the view of the High Court remains undisturbed.  The appeal  is allowed accordingly and will stand so disposed of.

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