SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1395_____ OF 2008 (Arising out of S.L.P.(Crl) No.2402 OF 2006)

State of West Bengal ...Appellant Vs.   Shyamadas Banerjee & Another ...Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. The short point for decision in this appeal

is  whether  a  Special  Judge  exercising

jurisdiction under the provisions of the West

Bengal  Criminal  Law  Amendment  (Special

Courts) Act, 1949, (hereinafter referred to

as “the Special Courts Act, 1949”),  can take

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cognizance of an offence against a member of

the  State  Legislative  Assembly  (hereinafter

referred to as “M.L.A.”) when he had ceased

to  be  a  M.L.A.,  though  the  offence  was

alleged to have been committed when he was a

sitting M.L.A.

3. On  the  basis  of  certain  newspapers  reports

one  Nikhil  Kishore  Roy   filed  a  Public

Interest  Litigation  in  the  Calcutta  High

Court  against  the  respondent  No.1,  Shri

Shyamadas  Banerjee,  alleging  that  he  had

misused  his  official  position  as  M.L.A.  by

submitting  forged  and  fictitious  medical

bills  and  fees  for  prescription  for

Rs.1,65,530.30 on account of the treatment of

his wife and his mother between 8.9.1998 to

10.11.1998.  The  said  Writ  Petition,  being

No.1311  of  1999,  was  disposed  of  by  a

Division Bench of the Calcutta High Court on

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23.6.1999, holding that the writ petitioner

could have lodged a First Information Report

or  filed  a  complaint  petition  before  the

concerned  Magistrate.  Thereafter,  on  the

basis  of  the  F.I.R.  lodged  by  Shri  Nikhil

Kumar  Roy  investigation  was  started  under

Section 468, 471, 420 and 511 of the Indian

Penal  Code,  (hereinafter  referred  to  as

“IPC”), by the  Hare Street Police Station.

The  respondent  No.1  surrendered  before  the

Chief  Metropolitan  Magistrate,  Calcutta,  on

17.1.2000,  and was released on bail. Charge-

sheet was filed on 16.1.2003, on the basis

whereof  the  Special  Court  assumed

jurisdiction  under  the  Special  Courts  Act,

1949,  against  the  respondent  No.1  treating

him  to  be  a  “public  servant”  and  framed

charges against him under Section 420/468/471

and 511 IPC.

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4. Aggrieved by the order of the Special Judge

4th Court, Calcutta, taking cognizance on the

basis  of  the  charge-sheet  filed,  the

respondent  No.1  moved  the  High  Court  in

revision (CRR No.1931 of 2003) alleging that

the  cognizance  taken  was  illegal  since  no

sanction  had  been  obtained  by  the

investigating agency to file a charge-sheet

against him. The High Court disposed of the

revision  petition  granting  liberty  to  the

trial Judge to proceed with the matter while

the  respondent  No.1  was  given  liberty  to

adjudicate the points which had been taken by

him  in  the  revision  application  before  the

learned  trial  Judge.  Such  application  was

made by the petitioner on 10.9.2003, but the

same was rejected by the learned trial Judge

which impelled the respondent No. 1 to once

again move the High Court in revision )CRR

No.2364 of 2003).

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5. During  the  hearing  of  the  revision

application, at the very outset it was urged

on behalf of the respondent No.1 that since

he had ceased to be a M.L.A. when cognizance

was taken by the learned Special Judge, such

cognizance was bad and the proceedings taken

on the basis thereof stood vitiated. It was

contended that the Special Courts Act, 1949,

enabled a Special Court to proceed against a

M.L.A.  defined  as  a  “public  servant”  under

the  Prevention  of  Corruption  Act,  1947  and

not under the Prevention of Corruption Act,

1988. It was also contended that even if the

respondent No.1 was a M.L.A. at the time of

commission of the alleged offence, he ceased

to be so when the charge-sheet was filed and

the cognizance was taken thereupon.  It was

further contended that there was no specific

statutory provision which provides that even

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though  a  person  ceases  to  be  a  public

servant,  he  could  still  be  deemed  to  be  a

public servant for the purpose of trial under

the  provisions  of  the  Special  Courts  Act,

1949, in respect of offences alleged to have

committed  before  he  ceased  to  be  a  public

servant.  It  was  submitted  that,  in  the

absence  of  such  a  provision,  the  charges

framed and cognizance  taken by the Special

Judge was bad in law and liable to be quashed.

6.  After  examining  the  aforesaid  question  in

detail, the learned single Judge of the High

Court  was  of  the  view  that  the  respondent

No.1  was  neither  a  M.L.A.  nor  a  public

servant  when  cognizance  was  taken  by  the

Special  Judge.  No  sanction  was,  therefore,

necessary  for  his  prosecution,  but  at  the

same time the trial of the case could not be

proceeded by the Special Judge. On the basis

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of the aforesaid conclusion, the High Court

allowed the revision application and quashed

the  cognizance  taken  by  the  Special  Court,

but observed that the same would not prevent

the  prosecuting  machinery  from  initiating

further  and/or  fresh  proceedings  in

accordance with law before the Court having

jurisdiction to entertain the same.

7. It  is  against  the  said  order  of  the  High

Court that the instant appeal has been filed

by the State of West Bengal.

8. On behalf of the appellant it was submitted

that in view of the provisions of Section 4

of  the  Special  Courts  Act,  1949,  the  High

Court  had  erred  in  quashing  the  cognizance

taken by the Special Court. It was contended

that it was in his capacity as M.L.A. that

the respondent No.1 had submitted two claims

for reimbursement of Rs.1,65,530.30  towards

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medical expenses said to have been incurred

for  treatment  of  his  wife  and  mother  at  a

particular nursing home. The claim included

the  price  of  medicines  said  to  have  been

purchased  from  a  particular  shop.  However,

when the bills were scrutinized it was found

that  there  was  no  existence  of  either  the

nursing  home  or  the  medicine  shop  at  the

addressed  provided  by  the  respondent  no.1,

who  had  abused  his  position  as  M.L.A.  for

wrongful  gain  and  to  cheat  the  Government

exchequer.

9. One of the other points urged on behalf of

the  appellant  is  that  the  earlier  writ

petition  filed  by  respondent  No.1  for

quashing  of  the  FIR  had  been  rejected  on

10.12.1999, and, thereafter, on completion of

the  investigations  charge-sheet  was  filed

against  the  respondent  No.1  before  the

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Special  Judge  4th Court,  Calcutta,  who,

assumed jurisdiction under the provisions of

the  Special  Courts  Act,  1949,  treating  the

respondent No.1 to be a public servant.  It

was urged that since the offence complained

of was said to have been committed when the

respondent  No.1  was  a  sitting  M.L.A.,  the

charge-sheet  had  been  rightly  filed  before

the  Special  Judge  on  which  cognizance  was

taken and charges were framed.

10. Mr.  Altaf  Ahmed,  learned  Senior  Counsel

appearing for the appellant, submitted that

the  question  as  to  whether  a  M.L.A.  is  a

public servant within the meaning of Section

21(12)(a)  IPC  was  no  longer  res  integra

having been  decided by a Constitution Bench

of this Court in the case of P.V.Narasimha

Rao vs. State (C.B.I./S.P.E.), (1998) 4 SCC

626,  wherein  in  clear  and  unambiguous

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language  it  was  held  that  Members  of

Parliament and M.L.A.s are public servants.

11. On the question of sanction for prosecution

it was urged that if a public servant takes

part in any activity, which is not part of

his  professional  duties,  no  sanction  for

prosecution, as contemplated in Section 197

Cr.P.C., would be necessary to prosecute such

a public servant before the Special Judge. In

this  regard,  reference  was  made  to  another

Constitution Bench decision of this Court in

Satwant Singh vs. The State of Punjab, AIR

1960 SC 266.

12. It  was  contended  that  in  the  facts  of  the

case the order of the High Court could not be

sustained and was liable to be set aside.  

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13. The  stand  of  the  respondent  No.1,  on  the

other  hand,  was  that  since  the  prosecution

had  been  launched  under  the  Special  Courts

Act,  1949,  having  regard  to  Section  10

thereof, the provisions of the Prevention of

Corruption Act, 1947 (hereinafter referred to

as “the 1947 Act”) would be applicable in the

instant  case  and  the  respondent  No.1  would

have  to  answer  the  description  of  “public

servant” as defined under the said Act and

consequently  under  Section  21  IPC  for  such

prosecution.  According  to  the  respondent

No.1, it would, therefore, have to be decided

for  the  purpose  of  maintaining  the

prosecution  whether  an  accused  who  was  a

public servant on the date of commission of

the offence would also have to be a public

servant  when  cognizance  of  the  offence  was

taken by the court.

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14. Mr. Pradip Ghosh, learned Senior Counsel who

appeared for the respondent No.1, submitted

that the High Court had arrived at the right

conclusion  though  on  a  reasoning  which  was

faulty. Reference was made to the provisions

of Section 21 IPC and in particular clause

(a)  of  the  12th description  thereof,  in

support of the stand taken by the respondent

No.1  that  on  the  date  when  cognizance  was

taken by the Special Court he had ceased to

be  a  public  servant  and  that  the  Special

Judge  could  not,  therefore,  have  assumed

jurisdiction in the matter.

15. Mr.  Ghosh  submitted  that  the  aforesaid

question  had  been  answered  by  the

Constitution  Bench  in  R.S.  Nayak  vs.  A.R.

Antulay,  (1984)  2  SCC  193,  in  which  in  no

uncertain  terms  it  had  been  held  that  a

M.L.A.  is  not  a  public  servant  within  the

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meaning  of  Section  21  IPC  and  that  no

sanction was necessary to prosecute a M.L.A.

for  any  offence  alleged  to  have  been

committed  by  him  while  he  was  a  sitting

M.L.A.  when  he  ceased  to  be  a  M.L.A.

Consequently,  the  Special  Court  had  no

jurisdiction to either entertain the charge-

sheet filed on the basis of the FIR lodged by

Shri Nikhil Kumar Roy or to take cognizance

on the basis thereof.

16. Regarding the decision in P.V.Narasimha Rao’s

case (supra), the stand taken on behalf of

the respondent No.1 was that in the said case

the  Constitution  Bench  was  considering  a

prosecution  under  the  Prevention  of

Corruption  Act,  1988,  wherein  a  “public

servant”  has  been  differently  defined  as

against the definition in the 1947 Act.

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17. Mr. Ghosh submitted that the instant case was

one  of  inherent  lack  of  jurisdiction  since

the Special Judge under the 1949 Act had no

jurisdiction  over  the  respondent  No.1  who

ceased to be a public servant when his term

as  a  M.L.A.  came  to  an  end.  Mr.  Ghosh

submitted that, having regard to the decision

in A.R.Antulay’s case (supra) the respondent

No.1 was never a public servant within the

meaning of Section 21 IPC.

18. From  the  case  made  out  on  behalf  of  the

respective parties, there is no dispute that

the respondent No.1 was elected as M.L.A. on

16.5.1996  and  he  ceased  to  be  so  on

20.7.2000. There is also no dispute that the

FIR was lodged against the respondent No.1 on

28.6.1999 when he was a sitting M.L.A., and

that  charge-sheet  was  filed  on  the  basis

thereof on 16.1.2003 and charges were framed

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on  29.7.2003.   In  other  words,  while  the

alleged  offence  was  said  to  have  been

committed  when  the  respondent  No.1  was  a

sitting  M.L.A.,  charges  were  framed  and

cognizance was taken long after he had ceased

to be a M.L.A. Accordingly, the main question

which  falls  for  decision  in  this  case  is

whether on the respondent No.1 ceasing to be

a M.L.A. the Special Judge under the Special

Courts  Act,  1949,  could  have  assumed

jurisdiction in the matter.  

19. As  to  whether  a  Member  of  Parliament  or  a

Member of a Legislative Assembly are public

servants or not within the meaning of Section

21 IPC, has fallen for the decision of the

two Constitution Benches of this Court. While

in A.R. Antulay’s case (supra) it has been

categorically  held  that  a  M.L.A.  is  not  a

public servant within the meaning of Section

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21 IPC, in P.V. Narasimha Rao’s case (supra)

the  said  view  was  distinguished  and  the

majority view was that a Member of Parliament

and  the  State  Legislatures  are  public

servants for the purpose of the Prevention of

Corruption Act, 1988.

20. Even if we proceed on the basis of the view

expressed  by  the  Constitution  Bench  in

P.V.Narasimha Rao’s case, we are still faced

with the question whether the same could be

applied  in  regard  to  assumption  of

jurisdiction by the Special Court under the

Special Courts Act, 1949, wherein reference

has been made to public servant as defined in

the Prevention of Corruption Act, 1947, and

by  extension  Section  21  IPC.  In  the  said

context  it  is  necessary  to  refer  to  the

provisions of Section 4 of the Special Courts

Act, 1949, which reads as follows:

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“4.  Offences  to  be  tried  by Special  Courts.-  Notwithstanding anything  contained  in  the  Code  of Criminal  Procedure,  1973  (2  of 1974), or in any other law in force, the  offences  specified  in  the schedule shall be triable by Special Courts only:

Provided that when trying a case, a Special  Court  may  also  try  any offence  other  than  the  offence specified  in  the  Schedule,  with which  the  accused  may,  under  the Code of Criminal Procedure, 1973, be charged at the same trial: Provided further that every offence specified in the Schedule shall be tried  by  the  Special  Court constituted for the particular area within  which  the  offence  was committed and where there are more than  one  Special  Court  constituted for any particular area, by such one of them as may be specified by the State Government by notification in the Official Gazette.”   

21. The schedule referred to in Section 4 of the

Act provides for offences triable by Special

Judges.   Paragraphs  2  and  3  of  the  said

Schedule provides as follows:-

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“2. An offence punishable under Section  409  of  the  Indian  Penal Code  (Act  XLV  of  1860),  if committed by a public servant or by a  person  dealing  with  property belonging to Government as an agent of  Government  or  by  a  person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government company in respect of property –  

with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.

3. An  offence  punishable  under Section 417 or Section 420 of the  Indian  Penal  Code,  if committed  by  a  public  servant or  by  a  person  dealing  with property  belonging  to Government  as  an  agent  of Government  or  by  a  person dealing with property belonging to  a  Government  company  as defined in Section 617 of the Companies Act, 1956 as an agent of  such  Government  company, while purporting to act as such public servant or agent.”

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22. Section  2  of  the  1947  Act  which  defines

public  servants  is  also  reproduced

hereinbelow:

“2. Interpretation –  For  the  purpose  of  this  Act. ‘public  servant’  means  a  public servant as defined in Section 21 of the Indian Penal Code.”

23. In other words, in order to fall within the

scope of the 1947 Act an accused person will

have  to  answer  the  definition  of  “public

servant” as indicated in Section 21 IPC. The

decision in P.V. Narasimha Rao’s case (supra)

was dealing with a public servant as defined

in Section 2(c)(viii) of the 1988 Act, which

reads as follows:

“2. Definitions –  

In  this  Act,  unless  the  context otherwise requires –   (a) xxx (b) xxx (c) “public servant” means,-

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(i) xxxxx (ii) xxxxx (iii) xxxxx (iv) xxxxx (v) xxxxx (vi) xxxxx (vii) xxxxx (viii)any  person  who  holds  an  office  by

virtue  of  which he is  authorized or required to perform any public duty.”

24. Since in the instant case we are concerned

with the prosecution under the Special Courts

Act, 1949, we will have to confine ourselves

to the definition of “public servant” within

the scope of the 1947 Act which includes the

definition  of  “public  servant”  within  the

meaning of Section 21 IPC. The said provision

having  been  considered  by  the  Constitution

Bench  in  A.R.  Antulay’s  case,  we  are  not

expressing  any  opinion  on  that  score.

However,  the  other  question  which  still

remains  to  be  answered  is  whether  the

provisions of the Special Courts Act, 1949,

would  continue  to  apply  to  the  respondent

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No.2 when he ceased to be a public servant

once  he  had  completed  his  term  as  M.L.A.,

even if the decision in P.V.Narasimha Rao’s

case  that  Members  of  Parliament  or  State

Legislative Assembly are public servants for

the purpose of the Prevention of Corruption

Act, 1988, is applied to the facts of this

case.

25. The aforesaid question has also been answered

by the Constitution Bench in A.R. Antulay’s

case (supra) while considering the provisions

of Section 6 of the 1947 Act which deals with

grant of sanction for prosecution of public

servants.  Faced  with  a  similar  situation

where prosecution had been launched against

Shri A.R. Antulay when he was Chief Minister

of Maharashtra, but had ceased to hold the

said post though he continued to be a sitting

M.L.A. of the State Legislative Assembly when

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cognizance was taken, the Constitution Bench,

inter alia, held that the object of providing

for  previous  sanction  for  prosecution  of

public  servants  was  to  save  the  public

servant  from  harassment  of  frivolous  or

unsubstantiated allegations. It was observed

that the policy under Section 6 is that there

should  not  be  unnecessary  harassment  of  a

public  servant.  It  was  also  held  that  the

accused must be a public servant when he is

alleged to have committed the offence which

could be committed by public servants. While

holding further that a trial without a valid

sanction,  where  one  is  necessary  under

Section 6, is a trial without jurisdiction,

it  was  also  held  that  a  valid  sanction  is

required  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

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servant,  but  by  the  time  the  Court  takes

cognizance  of  the  offence  alleged  to  have

been committed by him he had ceased to be a

public  servant,  no  sanction  would  be

necessary  for  taking  cognizance  of  the

offence  against  him.  As  a  necessary

corollary,  if  the  accused  ceases  to  be  a

public  servant  when  the  Court  takes

cognizance of the offence, Section 6 is not

attracted. In other words, the accused loses

his protective cover under Section 6 of the

1947 Act or Section 197 Cr.P.C., and he is

open to prosecution without sanction having

to be obtained, which also necessarily means

that  the  Special  Judge  under  the  Special

Courts  Act,  1949,  would  cease  to  have

jurisdiction over the accused.  

26. The issue which was decided in P.V. Narasimha

Rao’s case (supra) which has been relied upon

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on  behalf  of  the  appellant,  deals  with  a

situation  contemplated  under  the  Prevention

of Corruption Act, 1988, while in the instant

case  we  are  concerned  with  a  prosecution

under  the  Special  Courts  Act,  1949,  which

specifically  refers  to  the  provisions  of

Section  21  IPC.  That  is  the  distinguishing

feature of the two decisions and since we are

considering a case involving the provisions

of the 1947 Act, we are of the view that the

decision  in  A.R.Antulay’s  case  is  more

apposite to the facts of the instant case.

27. Since  the  respondent  No.1  ceased  to  be  a

Member of the State Legislature at a point of

time when cognizance was taken by the Special

Judge 4th Court, Calcutta, such cognizance and

the  proceedings  taken  on  the  basis  thereof

must be held to have been vitiated.  

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28. We,  accordingly,  dismiss  the  appeal  and

confirm the decision of the High Court.

……………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (MARKANDEY KATJU)

New Delhi Dated: 3.09.2008

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