Sanctionunderpcact 1988

Abhay Singh Chautala vs C.B.
I on 4 July, 2011
Supreme Court of India

Abhay Singh Chautala vs C.B.I on 4 July, 2011
Author: V Sirpurkar
Bench: V.S. Sirpurkar, T.S. Thakur
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1257 OF 2011
(Arising out of SLP (Crl.) No. 7384 of 2010)
Abhay Singh Chautala ... Appellant
Versus
C.B.I. ... Respondent
WITH
(Arising out of SLP (Crl.) No. 7428 of 2010)
Ajay Singh Chautala ... Appellant
Versus
C.B.I. ... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. This judgment will dispose of two Special Leave Petitions, they being SLP (Crl.) No. 7384 of 2010
and SLP (Crl.) No. 7428 of 2010. While Abhay Singh Chautala is the petitioner in the first Special
Leave Petition, the second one has been filed by Shri Ajay Singh Chautala. The question involved is
identical in both the SLPs and hence they are being disposed of by a common judgment.
2. Leave granted in both the Special Leave Petitions.
Indian Kanoon - http://indiankanoon.org/doc/1342360/ 1

3. Whether the sanction under Section 19 of The Prevention of Corruption Act (hereinafter called
"the Act" for short) was necessary against both the appellants and, therefore, whether the trial which
is in progress against both of them, a valid trial, is common question. This question was raised
before the Special Judge, CBI before whom the appellants are being tried for the offences under
Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with Section 109 of Indian
Penal Code in separate trials.
4. Separate charge sheets were filed against both the appellants for the aforementioned offences by
the CBI. It was alleged that both the accused while working as the Members of Legislative Assembly
had accumulated wealth disproportionate to their known sources of income. The charges were filed
on the basis of the investigations conducted by the CBI. This was necessitated on account of this
Court's order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to investigate the JBT Teachers
Recruitment Scam. The offences were registered on 24.5.2004. The CBI conducted searches and
seized incriminating documents which revealed that Shri Om Prakash Chautala and his family had
acquired movable and immovable properties valued at Rs.1,467 crores. On this basis a Notification
came to be issued on 22.2.2006 under Sections 5 and 6 of the DSPE Act with the consent of the
Government of Haryana extending powers and jurisdiction under the DSPE Act to the State of
Haryana for investigation of allegations regarding accumulation of disproportionate assets by Shri
Om Prakash Chautala and his family members under the Prevention of Corruption Act. A regular
First Information Report then came to be registered against Shri Om Prakash Chautala who is the
father of both the appellants. It is found that in the check period of 7.6.2000 to 8.3.2005, appellant
Abhay Singh Chautala had amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % of
appellant Abhay Singh Chautala's known sources of income. During the check period, Shri Abhay
Singh Chautala was the Member of the Legislative Assembly Haryana, Rori Constituency. Similarly,
in case of Ajay Singh Chautala, his check period was taken as 24.5.1993 to 31.5.2006 during which
he held the following offices:-
1. 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan
2. 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan
3. 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from
Bhiwani Constituency
4. 2.8.2004 to 03.11.09 Member of Parliament, Rajya Sabha
He was later on elected as MLA from Dabwali constituency, Haryana in November, 2009. It was
found that he had accumulated wealth worth Rs.27,74,74,260/- which was 339.26 % of his known
sources of income. It was on this basis that the charge sheet came to be filed.

5. Admittedly, there is no sanction to prosecute under Section 19 of the Act against both the
appellants.
6. An objection regarding the absence of sanction was raised before the Special Judge, who in the
common order dated 2.2.2010, held that the allegations in the charge sheet did not contain the
allegation that the appellants had abused their current office as member of Legislative Assembly
and, therefore, no sanction was necessary.
7. This order was challenged by way of a petition under Section 482 Cr.P.C. before the High Court.
The High Court dismissed the said petition by the order dated 8.7.2010.
8. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the
appellants, urged that on the day when the charges were framed or on any date when the cognizance
was taken, both the appellants were admittedly public servants and, therefore, under the plain
language of Section 19 (1) of the Act, the Court could not have taken cognizance unless there was a
sanction. The learned senior counsel analyzed the whole Section closely and urged that in the
absence of a sanction, the cognizance of the offences under the Prevention of Corruption Act could
not have been taken. In this behalf, learned senior counsel further urged that the judgment of this
Court in Prakash Singh Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment in
RS Nayak v. A R. Antulay [1984 (2) SCC 183] were not correct and required reconsideration and
urged for a reference to a Larger Bench.
9. Against these two judgments as also the judgments in Balakrishnan Ravi Menon v. Union of India
[2007 (1) SCC 45], K. Karunakaran v. State of Kerala [2007 (1) SCC 59] and Habibullah Khan v.
State of Orissa & Anr. [1995 (2) SCC 437], this Court had clearly laid down the law and had held that
where the public servant had abused the office which he held in the check period but had ceased to
hold "that office" or was holding a different office then a sanction would not be necessary. The
learned Solicitor General appearing for the respondent urged that the law on the question of
sanction was clear and the whole controversy was set at rest in AR Antulay's case (cited supra)
which was followed throughout till date. The Solicitor General urged that the said position in law
should not be disturbed in view of the principle of staire decicis. Extensive arguments were
presented by both the parties requiring us now to consider the question.
Section 19 runs as under:-
"19. Previous sanction necessary for prosecution.
(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, -
(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 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-
(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, 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 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: For the purposes of this Section, -
(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."
10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on behalf of the
appellants, firstly pointed out that the plain meaning of Section 19(1) of the Act is that when any
public servant is tried for the offences under the Act, a sanction is a must. The learned senior
counsel were at pains to point out that in the absence of a sanction, no cognizance can be taken
against the public servant under Sections 7, 10, 11, 13 and 15 of the Act and thus, a sanction is a

must. The learned senior counsel relied on the decision in Abdul Wahab Ansari Vs. State of Bihar
[2000 (8) SCC 500], more particularly, paragraph 7, as also the decision in Baij Nath Prasad
Tripathi Vs. State of Bhopal [1957 (1) SCR 650]. The plain language of Section 19(1) cannot be
disputed. The learned senior counsel argued that Section 19(1) of the Act creates a complete
embargo against taking cognizance of the offences mentioned in that Section against the accused
who is a public servant. The learned senior counsel also argued that it is only when the question
arises as to which authority should grant a sanction that the sub-Section (2) will have to be taken
recourse to. However, where there is no duty of any such nature, the Court will be duty bound to ask
for the sanction before it takes cognizance of the offences mentioned under this Section.
11. As against this, Shri Gopal Subramanium, learned Solicitor General, pointed out the decision in
RS Nayak v. A R. Antulay (cited supra) and the subsequent decisions in Balakrishnan Ravi Menon v.
Union of India (cited supra), K. Karunakaran v. State of Kerala (cited supra), Habibullah Khan v.
State of Orissa & Anr. (cited supra) and lastly, in Prakash Singh Badal v. State of Punjab (cited
supra).
12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on behalf of the
appellants, have no quarrel with the proposition that in all the above cases, it is specifically held that
where the alleged misconduct is in some different capacity than the one which is held at the time of
taking cognizance, there will be no necessity to take the sanction.
13. To get over this obvious difficulty, the learned senior counsel appearing on behalf of the
appellants contended that the basic decision in RS Nayak v. A R. Antulay (cited supra) was not
correctly decided, inasmuch as the decision did not consider the plain language of the Section which
is clear and without any ambiguity. The learned senior counsel contended that where the language is
clear and admits of no ambiguity, the Court cannot reject the plain meaning emanating out of the
provision. Further, the learned senior counsel pointed out that even in the judgments following the
judgment in RS Nayak v. A R. Antulay (cited supra) upto the judgment in the case of Prakash Singh
Badal v. State of Punjab (cited supra) and even thereafter, the learned Judges have not considered
the plain meaning and on that count, those judgments also do not present correct law and require
reconsideration. Another substantial challenge to the judgment in RS Nayak v. A R. Antulay (cited
supra) is on account of the fact that the law declared to the above effect in RS Nayak v. A R. Antulay
(cited supra) was obiter dictum, inasmuch as it was not necessary for the Court to decide the
question, more particularly, decided by the Courts in paragraphs 23 to 26. The learned senior
counsel pointed out that, firstly, the Court in RS Nayak v. A R. Antulay (cited supra), came to the
conclusion that Shri Antulay who was a Member of the Legislative Assembly, was not a public
servant. It is contended that once that finding was arrived at, there was no question of further
deciding as to whether, the accused being a public servant in a different capacity, the law required
that there had to be a sanction before the Court could take the cognizance. Learned senior counsel
further argued that where the Court makes an observation which is either not necessary for the
decision of the court or does not relate to the material facts in issue, such observation must be held
as obiter dictum. In support of this proposition, the learned senior counsel relied on the decision in
Director of Settlement, State of A.P. Vs. M.R. Apparao [2002 (4) SCC 638] (Paragraph 7), State of
Haryana Vs. Ranbir @ Rana [2006 (5) SCC 167], Division Controller, KSRTC Vs. Mahadeva Shetty &

Anr. [2003(7) SCC 197] (Paragraph 23), H.H. Maharajadhiraja Mahdav Rao Jiwaji Rao Scindia
Bahadur Vs. Union of India [AIR 1971 SC 530] (Paragraph 325 onwards), State of Orissa Vs.
Sudhansu Sekhar Misra [AIR 1968 SC 647] [in which the celebrated decision in Quinn Vs. Leathem
1901 AC 495] was relied on and ADM Jabalpur etc. Vs. Shivkant Shukla [1976 (2) SCC 521] etc. The
learned senior counsel also argued that the whole class of public servant would be deprived of the
protection if the decision in RS Nayak v. A R. Antulay (cited supra) is followed. For this purpose,
learned senior counsel argued that in such case, public servants would be exposed to frivolous
prosecutions which would have disastrous effects on their service careers, though they are required
to be insulated against such false, frivolous and motivated complaints of wrong doing. It is then
argued that the decision in K. Veeraswami Vs. Union of India [1991 (3) SCC 655] has in fact removed
the very foundation of the decision in RS Nayak v. A. R. Antulay (cited supra) in respect of the
sanction. It is also argued that, in effect, the decision in RS Nayak v. A R. Antulay (cited supra) has
added further proviso to the effect "provided that nothing in this sub-Section shall apply to a case
where at the time of cognizance, the public servant is holding a different post with a different
removing authority from the one in which the offence is alleged to have been committed". It is
argued that such an addition would be clearly impermissible as it would negate the very foundation
of criminal law which requires a strict interpretation in favour of the accused and not an
interpretation which results into deprivation of the accused of his statutory rights. The decision in
S.A. Venkataraman Vs. State [AIR 1958 SC 107] is also very heavily relied upon, more particularly,
the observations in paragraphs 14 and 16 thereof.
14. It will be, therefore, our task to see as to whether the judgment in A. R. Antulay's case (cited
supra) and the law decided therein, particularly in paragraphs 24, 25 and 26 is obiter. Paragraphs
24, 25 and 26 are as under:
"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 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] ICR 662
25. Support was sought to be drawn for the submission from the decision of the Andhra Pradesh
High Court in Air Commodore Kailash Chand v. The State (S.P.E.
Hyderabad) (1973) 2 AWR 263 and the affirmance of that decision by this Court in The State (S.P.E.
Hyderabad) v. Air Commodore Kailash Chand :
1980CriLJ393 . In that case accused Kailash Chand was, a member of the Indian Air Force having
entered the service on 17th November 1941. He retired from the service on 15th June , 1965, but was
re-employed for a period of 2 years with effect from 16th June, 1965. On 7th September, 1966, the
respondent was transferred to the Regular Air Force Reserve with effect from June 16, 1965 to June
15, 1970 i.e. for a period of 5 years. On 13th March, 1968, the re-
employment given to the respondent ceased and his service was terminated with effect from April 1,
1968. A charge-sheet was submitted against him for having committed an offence under Section
5(2) of the Prevention of Corruption Act, 1947 during the period March 29, 1965 to March 16, 1967.
A contention was raised on behalf of the accused that the court could not take cognizance of the
offence in the absence of a valid sanction of the authority competent to remove him from the office
held by him as a public servant.
The learned special Judge negatived the contention. In the revision petition filed by the accused in
the High Court, the learned Single Judge held that on the date of taking cognizance of the offence,
the accused was a member of the Regular Air Force Reserve set up under the Reserve and Auxiliary
Air Force, 1952 and the rules made there under. Accordingly, it was held that a sanction to prosecute
him was necessary and in the absence of which the court could not the cognizance of the offences

and the prosecution was quashed. In the appeal by certificate, this Court upheld the decision of the
High Court. This Court held following the decision in S.A. Venkataraman's case that if the public
servant had ceased to be a public servant at the time of taking cognizance of the offence, Section 6 is
not attracted. Thereafter the court proceeded to examine whether the accused was a public servant
on the date when the court took cognizance of the offence and concluded that once the accused was
transferred to the Auxiliary Air Force, he retained his character as a public servant because he was
required to undergo training and to be called up for service as and when required. The court further
held that as such the accused was a public servant as an active member of the Indian Air Force and a
sanction to prosecute him under Section 6 was necessary. This decision is of no assistance for the
obvious reason that nowhere it was contended before the court, which office was alleged to have
been abused by the accused and whether the two offices were separate and distinct. It is not made
clear whether the accused continued to hold the office which was alleged to have been abused or
misused even at the time of taking cognizance of the offence.
But that could not be so because the service of the accused was terminated on April 1, 1968 while the
cognizance was sought to be taken in June, 1969.
Indisputably, the accused had ceased to hold that office as public servant which he was alleged to
have misused or abused. The court was however, not invited to consider the contention canvassed
before us: Nor was the court informed specifically whether the subsequent office held by the accused
in that case was the same from which his service was terminated meaning thereby he was
re-employed to the same office. The decision appears to proceed on the facts of the case. 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.
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."
15. It is clear from these paragraphs that the law laid down in Air Commodore Kailash Chand v. The
State (S.P.E. Hyderabad) [(1973) 2 AWR 263] was taken into consideration. The Court has also
quoted S.A. Venkataraman's case (cited supra) and the decision in Kailash Chand's case (cited
supra) was distinguished by holding thus:

"This decision is of no assistance for the obvious reason that nowhere it was
contended before the court, which office was alleged to have been abused by the
accused and whether the two offices were separate and distinct. It is not made clear
whether the accused continued to hold the office which was alleged to have been
abused or misused even at the time of taking cognizance of the offence. But that could
not be so because the service of the accused was terminated on April 1, 1968 while the
cognizance was sought to be taken in June, 1969. Indisputably, the accused had
ceased to hold that office as public servant which he was alleged to have misused or
abused. The court was however, not invited to consider the contention canvassed
before us: Nor was the court informed specifically whether the subsequent office held
by the accused in that case was the same from which his service was terminated
meaning thereby he was re- employed to the same office. The decision appears to
proceed on the facts of the case."
16. The propositions argued by the learned Solicitor General have, therefore, been totally accepted.
However, that does not solve the question. The question is whether these propositions amount to
obiter. The learned senior counsel for the appellants insists that it was not at all necessary for the
Court to make these observations as the Court had answered the question whether A.R. Antulay in
his capacity as an MLA, was a public servant, in negative. The learned senior counsel argued that
once it was found that Antulay in his capacity as an MLA, was not a public servant, it was not at all
necessary for the Court to go further and probe a further question as to whether a public servant
who has abused a particular office ceased to hold that office and held some other office on the date
of cognizance would still require sanction for his prosecution for the offence under the Act. The
argument is extremely attractive on the face of it because indeed in Antulay's case (cited supra) such
a finding that Shri Antulay in his capacity is an MLA was not a public servant was unequivocally
given. However, we do not agree to the proposition that the Court could not have gone further and
recorded its finding in paragraphs 23 to 26 as they did. It is necessary firstly to note paragraph 15
which gives a clear cut idea as to what was the exact controversy therein and how the rival parties
addressed Courts on various questions. Paragraph 15 is as under:-
"15. The appellant, the original complainant, contends that the learned special Judge
was in error in holding that M.L.A. is a public servant within the meaning of the
expression under Section 21(12)(a). The second submission was that if the first
question is answered in the affirmative, it would be necessary to examine whether a
sanction as contemplated by Section 6 is necessary. If the answer to the second
question is in the affirmative it. would be necessary to identify the sanctioning
authority. The broad sweep of the argument was that the complainant in his
complaint has alleged that the accused abused his office of Chief Minister and not his
office, if any, as M.L.A. and therefore, even if on the date of taking cognizance of the
offence the accused was M.L.A, nonetheless no sanction to prosecute him is necessary
as envisaged by Section 6 of the 1947 Act. It was urged that as the allegation against
the accused in the complaint is that he abused or misused his office as Chief Minister
and as by the time the complaint was filed and cognizance was taken, he had ceased
to hold the office of the Chief Minister no sanction under Section 6 was necessary to

prosecute him for the offences alleged to have been committed by him when the
accused was admittedly a public servant in his capacity as Chief Minister." (Emphasis
supplied).
Therefore, it will be clear that the complainant's main argument was the abuse of the office of Chief
Minister which the accused ceased to hold and hence no sanction was necessary. In that the
complainant proceeded on the premise that the accused as the MLA was a public servant.
17. In paragraph 16 the contention of the accused is noted which suggests that he was a public
servant within the contemplation of clauses (3) and (7) of Section 21 of IPC as also under section 21
(12) (a). In fact it was the argument of accused by way of the next claim that if the accused holds
plurality of offices each of which confers the status of a public servant and even if it is alleged that he
has abused or misused one office as a public servant notwithstanding the fact that there was no
allegation of the abuse or misuse of other office held as public servant, the sanction of each authority
competent to remove him from each of the offices would be a sine qua non under Section 6 before a
valid prosecution can be launched against the accused. Therefore, the question of accused being a
public servant was inextricably mixed with the question of the office which accused was alleged to
have misused. There was no dichotomy between the two questions. Strangely enough, the accused
claimed to be a public servant, unlike the present case and it was on that premise that the accused
had raised a question that there would have to be the sanction qua each office that he continued to
hold on the date when the cognizance was taken. In the present case, it is not disputed that the
accused was a public servant. Undoubtedly they were public servants. By the subsequent judgment
in P.V. Narsimha Rao Vs. State [1998 (4) SCC 626] it has been clearly held now that the Members of
Legislative Assembly and the Members of Parliament are public servants. Therefore, the question
which was addressed in that case by the accused claiming himself to be a public servant is an
identical question which fell for consideration before the High Court as also before us. In paragraph
17, the Court formulated the questions to be decided precisely on the basis of the contention raised
by the accused in that case. Following were those questions :
"(a) What is the relevant date with reference to which a valid sanction is a
pre-requisite for the prosecution of a public servant for offences enumerated in
Section 6 of the 1947 Act?
(b) If the accused holds plurality of offices occupying each of which makes him a
public servant, is sanction of each one of the competent authorities entitled to remove
him from each one of the offices held by him necessary and if anyone of the
competent authorities fails or declines to grant sanction, is the Court precluded or
prohibited from taking cognizance of the offence with which the public servant is
charged?
(c) Is it implicit in Section 6 of the 1947 Act that sanction of that competent authority
alone is necessary, which is entitled to remove the public servant from the office
which is alleged to have been abused for misused for corrupt motives?

(d) Is M.L.A. a public servant within the meaning of the expression in Section
21(12)(a) IPC?
(e) Is M.L.A. a public servant within the meaning of the expression, in Section 21(3)
and Section 21(7) IPC?
(f) Is sanction as contemplated by Section 6 of the 1947 Act necessary for prosecution
of M.L.A.?
(g) If the answer to (f) is in the affirmative, which is the Sanctioning Authority
competent to remove M.L.A. from the office of Member of the Legislative Assembly?"
18. It will be seen from the nature of the questions that the whole controversy was covered by those
questions particularly, the question raised in (b), (c), (d) and (e) were nothing but the result of the
contentions raised by the parties which directly fell for consideration.
19. The Court answered the first question that the relevant date of sanction would be the date on
which the cognizance was taken of the offence. Since in paragraph 23 to 26 the Court found that the
accused in that case did not continue to hold the office that he had allegedly abused on the date of
cognizance, there was no necessity of granting any sanction. The Court held so in paragraph 27 in
the most unequivocal terms. The Court goes on to record "therefore, it is crystal clear that the
complaint filed against the accused charged him with criminal abuse or misuse of only his office as
Chief Minister. By the time, the court was called upon to take cognizance of the offences, so alleged
in the complaint, the accused had ceased to hold the office of the Chief Minister. On this short
ground, it can be held that no sanction to prosecute him was necessary as former Chief Minister of
Maharashtra State. The appeal can succeed on this short ground." (Emphasis supplied).
20. However, subsequently, the question whether an MLA was a public servant was also canvassed
at length. The Court then went on to examine the question in further paragraphs and came to the
conclusion that MLA was not a public servant which law was, of course thereafter, upset in
Narsimha Rao's case (cited supra). It cannot be said that the question decided by the Court
regarding the abuse of a particular office and the effects of the accused not continuing with that
office or holding an altogether different office was obiter. In fact it is on that very basis that the
judgment of A.R.Antulay (cited supra) proceeded. The question of MLA not being a public servant
was decided as a subsidiary question.
21. This finding of ours is buttressed by the decision reported in Balakrishnan Ravi Menon v. Union
of India (cited supra) which decision came almost immediately after Prakash Singh Badal v. State of
Punjab (cited supra) case. Whether the finding given in the judgment of Antulay's case (cited supra)
was obiter was the question that directly fell for consideration in that case. This Court quoted
paragraph 24 of the judgment in Antulay's case (cited supra) so also some portion of paragraph 25.
It is on the basis of these two paragraphs that the Court unequivocally rejected the contention that
the finding given in Antulay's case (cited supra) regarding the abuse of office of Chief Minister was
obiter. Therefore, it would not be possible for us to hold that the finding given in Antualy's case

(cited supra) was an obiter. We must point out at this juncture that in Antulay's case (cited supra)
the Court first went on to decide the basic question that if the accused did not continue with the
office that he had allegedly abused on the day cognizance was taken, then there was no requirement
of sanction.
22. This finding was given as the complainant in that case had canvassed in the backdrop of the
judgment of the trial Court discharging the accused holding him to be a public servant. The trial
Court had held that in the absence of such sanction, the accused was entitled to be discharged. The
complainant filed a writ petition against this order. This court had permitted to file a criminal
revision against the order of learned Special Judge perhaps being of the opinion that the writ
petition did not lie and ultimately this Court transferred the criminal revision against the trial
Court's judgment here. The complainant, therefore, had specifically and basically raised the point
that since the accused had ceased to hold the office of Chief Minister on the date of cognizance, there
was no question of any sanction and that was the main issue which was decided in Antulay's case
(cited supra) as the basic issue by way of question No.(b)
23. We, therefore, do not think the finding given in Antulay's case (cited supra) was in any manner
obiter and requires reconsideration. Learned Senior Counsel relied on the decision in Marta Silva &
Ors. Vs. Piedade Cardazo & Ors. [AIR 1969 Goa 94], State of A.P. Vs. M.R. Apparao (cited supra],
State of Haryana Vs. Ranbir alias Rana (cited supra], Division Controller, KSRTC Vs. Mahadeva
Shetty & Anr. (cited supra), H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur Vs.
Union of India (cited supra), State of Orissa Vs. Sudhansu Sekhar Misra (cited supra) and lastly
ADM, Jabalpur etc. Vs. Shivkant Shukla (cited supra] and contended that the principles of obiter
dicta in the aforementioned decisions would apply to Antulay's case (cited supra) also. We have
already shown that the principles regarding the abuse of a particular office, decided in Antulay's
case (cited supra), could not be termed as Obiter dicta. We have nothing to say about the principles
in the aforementioned decisions. However, in the circumstances, which we have shown above, all
these cases would be of no help to the appellants herein, particularly in the light of our conclusion
that the principles arrived at in Antulay's case (cited supra) could not be termed as obiter dicta. We,
therefore, reject the argument on that count.
24. There is one more reason, though not a major one, for not disturbing the law settled in Antulay's
case (cited supra). That decision has stood the test of time for last over 25 years and it is trite that
going as per the maxim stare decisis et non quieta movere, it would be better to stand by that
decision and not to disturb what is settled. This rule of interpretation was approved of by Lord Coke
who suggested - "those things which have been so often adjudged ought to rest in peace". This Court
in Shanker Raju Vs. Union of India [2011 (2) SCC 132], confirmed this view while relying on the
decision in Tiverton Estates Ltd. Vs. Wearwell Ltd. [1974 (1) WLR 176] and more particularly, the
observations of Scarman, L.J., while not agreeing with the view of Lord Denning, M.R. about
desirability of not accepting previous decisions. The observations are to the following effect:-
"..... I decline to accept his lead only because I think it damaging to the law to the long
term - though it would undoubtedly do justice in the present case. To some it will
appear that justice is being denied by a timid, conservative adherence to judicial

precedent. They would be wrong. Consistency is necessary to certainty - one of the

great objectives of law."
The Court also referred to the following other cases:-
Waman Rao Vs. Union of India [1981 (2) SCC 362], Manganese Ore (India) Ltd. Vs.
CST [1976 (4) SCC 124], Ganga Sugar Corpn. Vs. State of U.P. [1980 (1) SCC 223],
Union of India Vs. Raguhbir Singh [1989 (2) SCC 754], Krishena Kumar Vs. Union of
India [1990 (4) SCC 207], Union of India Vs. Paras Laminates (P) Ltd. [1990(4) SCC
453] and lastly, Hari Singh Vs. State of Haryana [1993 (3) SCC 114].
We respectfully agree with the law laid down in Shanker Raju Vs. Union of India
(cited supra) and acting on that decision, desist from disturbing the settled law in
Antulay's case (cited supra). We have in the earlier part of the judgment, pointed out
as to how the decision in Antulay's case (cited supra) has been followed right up to
the decision in Prakash Singh Badal v. State of Punjab (cited supra) and even
thereafter.
25. This leaves us with the other contention raised by learned Senior Counsel Shri Mukul Rohtagi as
well as Shri U.U. Lalit arguing for the appellants. The learned senior counsel contended that the
decision in Antulay's case (cited supra) is hit by the doctrine of per incuriam. The learned senior
counsel heavily relied on the decision in Punjab Land Development Reclamation Corporation Ltd.
Vs. Presiding Officer [1990 (3) SCC 682] and Nirmal Jeet Kaur Vs. State of M.P. [2004 (7) SCC 558]
to explain the doctrine of per incuriam. We have absolutely no quarrel with the principles laid down
in those two cases. However, we feel that the resultant argument on the part of the learned senior
counsel is not correct. In support of their argument, the learned senior counsel contended that in
Antulay's case (cited supra), Section 6(2) of the Act, as it therein existed, was ignored. In short, the
argument was that Section 6(2) which is parimateria with Section 19(2) of the Act provides that in
case of doubt as to which authority should give the sanction, the time when the offence is alleged to
have been committed is relevant. The argument further goes on to suggest that if that is so, then the
Act expressly contemplates that a public servant may be holding office in a different capacity from
the one that he was holding when the offence is alleged to have been committed at the time when
cognizance is taken so as to cause doubt about the sanctioning authority. Thus, there would be
necessity of a sanction on the date of cognizance and, therefore, in ignoring this aspect, the decision
in Antulay's case (cited supra) has suffered an illegality. Same is the argument in the present case.
26. This argument is basically incorrect. In Antulay's case (cited supra), it is not as if Section 6(2) of
the Act as it then existed, was ignored or was not referred to, but the Constitution Bench had very
specifically made a reference to and had interpreted Section 6 as a whole. Therefore, it cannot be
said that the Constitution Bench had totally ignored the provisions of Section 6 and more
particularly, Section 6(2). Once the Court had held that if the public servant had abused a particular
office and was not holding that office on the date of taking cognizance, there would be no necessity
to obtain sanction. It was obvious that it was not necessary for the Court to go up to Section 6(2) as
in that case, there would be no question of doubt about the sanctioning authority. In our opinion

also, Section 6(2) of the Act, which is parimateria to Section 19(2), does not contemplate a situation
as is tried to be argued by the learned senior counsel. We do not agree with the proposition that the
Act expressly contemplates that a public servant may be holding office in a different capacity from
the one that he was holding when the offence is alleged to have been committed at the time when
cognizance is taken. That is not, in our opinion, the eventuality contemplated in Section 6(2) or
Section 19(2), as the case may be. In Antulay's case (cited supra), the Court went on to hold that
where a public servant holds a different capacity altogether from the one which he is alleged to have
abused, there would be no necessity of sanction at all. This view was taken on the specific
interpretation of Section 6 generally and more particularly, Section 6(1)(c), which is parimateria to
Section 19(1)(c) of the Act. Once it was held that there was no necessity of sanction at all, there
would be no question of there being any doubt arising about the sanctioning authority. The doubt
expressed in Section 19(2), in our opinion, is not a pointer to suggest that a public servant may have
abused any particular office, but when he occupies any other office subsequently, then the sanction
is a must. That will be the incorrect reading of the Section. The Section simply contemplates a
situation where there is a genuine doubt as to whether sanctioning authority should be the Central
Government or the State Government or any authority competent to remove him. The words in
Section 19(2) are to be read in conjunction with Sections 19(1)(a), 19(1)(b) and 19(1)(c). These
clauses only fix the sanctioning authority to be the authority which is capable of "removing a public
servant". Therefore, in our opinion, the argument based on the language of Section 6(2) or as the
case may be, Section 19(2), is not correct. This eventuality has been considered, though not directly,
in paragraph 24 in the judgment in Antulay's case (cited supra), in the following manner:-
"24 ....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. One 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 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".

(emphasis supplied)
27. It is in the light of this that the Court did not have to specify as to under what circumstances
would a duty arise for locating the authority to give sanction. The doubt could arise in more
manners than one and in more situations than one, but to base the interpretation of Section 19(1) of
the Act on the basis of Section 19(2) would be putting the cart before the horse. The two Sections
would have to be interpreted in a rational manner. Once the interpretation is that the prosecution of
a public servant holding a different capacity than the one which he is alleged to have abused, there is
no question of going to Section 6(2) / 19(2) at all in which case there will be no question of any
doubt. It will be seen that this interpretation of Section 6(1) or, as the case may be, Section 19(1), is
on the basis of the expression "office" in three sub-clauses of Section 6(1), or the case may be,
Section 19(1). For all these reasons, therefore, we are not persuaded to accept the contention that
Antulay's case (cited supra) was decided per incuriam of Section 6(2). In our opinion, the decision in
K. Veeraswami Vs. Union of India (cited supra) or, as the case may be, P.V. Narsimha Rao's case
(cited supra) are not apposite nor do they support the contention raised by the learned senior
counsel as regards Antulay's case (cited supra) being per incuriam of Section 6(2).
28. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the
appellants, in support of their argument that Antulay's case (cited supra) require reconsideration,
urged that that interpretation deprives the entire class of public servants covered by the clear words
of Section 6(1)/19(1) of a valuable protection. It was further urged that such interpretation would
have a disastrous effect on the careers of the public servants and the object of law to insulate a
public servant from false, frivolous, malicious and motivated complaints of wrong doing would be
defeated. It was also urged that such interpretation would amount to re-writing of Section 19(1) and
as if a proviso would be added to Section 19(1) to the following effect:-
"Provided that nothing in this sub-Section shall apply to a case where at the time of
cognizance, the public servant is holding a different post with a different removing
authority from the one in which the offence is alleged to have been committed.
Lastly, it was urged that such an interpretation would negate the very foundation of criminal law,
which requires a strict interpretation in favour of the accused. Most of these questions are already
answered, firstly, in Antulay's case (cited supra) and secondly, in Prakash Singh Badal v. State of
Punjab (cited supra). Therefore, we need not dilate on them. We specifically reject these arguments
on the basis of Antulay's case (cited supra) itself which has been relied upon in Prakash Singh Badal
v. State of Punjab (cited supra). The argument regarding the addition of the proviso must also fall as
the language of the suggested proviso contemplates a different "post" and not the "office", which are
entirely different concepts. That is apart from the fact that the interpretation regarding the abuse of
a particular office and there being a direct relationship between a public servant and the office that
he has abused, has already been approved of in Antulay's case (cited supra) and the other cases
following Antulay's case (cited supra) including Prakash Singh Badal v. State of Punjab (cited
supra). We, therefore, reject all these arguments.

29. It was also urged that a literal interpretation is a must, particularly, to sub- Section (1) of Section
19. That argument also must fall as sub-Section (1) of Section 19 has to be read with in tune with and
in light of sub-Sections (a), (b) and (c) thereof. We, therefore, reject the theory of litera regis while
interpreting Section 19(1). On the same lines, we reject the argument based on the word "is" in
sub-Sections (a), (b) and (c). It is true that the Section operates in praesenti; however, the Section
contemplates a person who continues to be a public servant on the date of taking cognizance.
However, as per the interpretation, it excludes a person who has abused some other office than the
one which he is holding on the date of taking cognizance, by necessary implication. Once that is
clear, the necessity of the literal interpretation would not be there in the present case. Therefore,
while we agree with the principles laid down in Robert Wigram Crawford Vs. Richard Spooner [4
MIA 179], Re Bedia Vs. Genreal Accident, Fir and Life Assurance Corporation Ltd. [1948 (2) All ER
995] and Bourne (Inspector of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576], we
specifically hold that giving the literal interpretation to the Section would lead to absurdity and
some unwanted results, as had already been pointed out in Antulay's case (cited supra) (see the
emphasis supplied to para 24 of Antulay's judgment).
30. Another novel argument was advanced basing on the language of Sections 19(1) and (2). It was
pointed out that two different terms were used in the whole Section, one term being "public servant"
and the other being "a person". It was, therefore, urged that since the two different terms were used
by the Legislature, they could not connote the same meaning and they had to be read differently.
The precise argument was that the term "public servant" in relation to the commission of an offence
connotes the time period of the past whereas the term "a person" in relation to the sanction
connotes the time period of the present. Therefore, it was urged that since the two terms are not
synonymous and convey different meanings in respect of time/status of the office, the term "public
servant" should mean the "past office" while "person" should mean the "present status/present
office". While we do agree that the different terms used in one provision would have to be given
different meaning, we do not accept the argument that by accepting the interpretation of Section
19(1) in Antulay's case, the two terms referred to above get the same meaning. We also do not see
how this argument helps the present accused. The term "public servant" is used in Section 19(1) as
Sections 7, 10, 1 and 13 which are essentially the offences to be committed by public servants only.
Section 15 is the attempt by a public servant to commit offence referred to in Section 13(1)(c) or
13(1)(d). Section 19(1) speaks about the cognizance of an offence committed by a public servant. It is
not a cognizance of the public servant. The Court takes cognizance of the offence, and not the
accused, meaning, the Court decides to consider the fact of somebody having committed that
offence. In case of this Act, such accused is only a public servant. Then comes the next stage that
such cognizance cannot be taken unless there is a previous sanction given. The sanction is in respect
of the accused who essentially is a public servant. The use of the term "a person" in sub-Sections (a),
(b) and (c) only denotes an "accused". An "accused" means who is employed either with the State
Government or with the Central Government or in case of any other person, who is a public servant
but not employed with either the State Government or the Central Government. It is only "a person"
who is employed or it is only "a person" who is prosecuted. His capacity as a "public servant" may be
different but he is essentially "a person"

- an accused person, because the Section operates essentially qua an accused person. It is not a
"public servant" who is employed; it is essentially "a person" and after being employed, he becomes
a "public servant" because of his position. It is, therefore, that the term "a person" is used in clauses
(a), (b) and (c). The key words in these three clauses are "not removable from his office save by or
with the sanction of ....". It will be again seen that the offences under Sections 7, 10, 11 and 13 are
essentially committed by those persons who are "public servants". Again, when it comes to the
removal, it is not a removal of his role as a "public servant", it is removal of "a person" himself who
is acting as a "public servant". Once the Section is read in this manner, then there is no question of
assigning the same meaning to two different terms in the Section. We reject this argument.
31. Another novel argument was raised on the basis of the definition of "public servant" as given in
Section 2(c) of the Act. The argument is based more particularly on clause 2(c)(vi) which provides
that an arbitrator, on account of his position as such, is public servant. The argument is that some
persons, as contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of a
public servant only for a limited time and if after renouncing that character of a public servant on
account of lapse of time or non-continuation of their office they are to be tried for the abuse on their
part of the offices that they held, then it would be a very hazardous situation. We do not think so. If
the person concerned at the time when he is to be tried is not a public servant, then there will be no
necessity of a sanction at all. Section 19(1) is very clear on that issue. We do not see how it will cause
any hazardous situation. Similarly, it is tried to be argued that a Vice-Chancellor who is a public
servant and is given a temporary assignment of checking the papers or conducting examination or
being invigilator by virtue of which he is a public servant in an entirely different capacity as from
that of a Professor or a Vice-Chancellor, commits an offence in the temporary capacity, then he
would not be entitled to the protection and that will be causing violence to such public servant and,
therefore, such could not have been the intention of the Legislature. We feel that the example is
wholly irrelevant in the light of the clearest possible dictum in Antulay's case (cited supra) and in
Prakash Singh Badal v. State of Punjab (cited supra). If the concerned person continues to be a
Vice-Chancellor and if he has abused his office as Vice-Chancellor, there would be no doubt that his
prosecution would require a sanction. So, it will be a question of examining as to whether such
person has abused his position as a Vice-Chancellor and whether he continues to be a
Vice-Chancellor on the date of taking of the cognizance. If, however, he has not abused his position
as Vice-Chancellor but has committed some other offence which could be covered by the
sub-Sections of Section 19, then there would be no necessity of any sanction.
32. Same argument was tried to be raised on the question of plurality of the offices held by the
public servant and the doubt arising as to who would be the sanctioning authority in such case. In
the earlier part of the judgment, we have already explained the concept of doubt which is
contemplated in the Act, more particularly in Section 19(2). The law is very clear in that respect. The
concept of `doubt' or `plurality of office' cannot be used to arrive at a conclusion that on that basis,
the interpretation of Section 19(1) would be different from that given in Antulay's case (cited supra)
or Prakash Singh Badal v. State of Punjab (cited supra). We have already explained the situation
that merely because a concept of doubt is contemplated in Section 19(2), it cannot mean that the
public servant who has abused some other office than the one he is holding could not be tried
without a sanction. The learned senior counsel tried to support their argument on the basis of the

theory of "legal fiction". We do not see as to how the theory of "legal fiction" can work in this case. It
may be that the appellants in this case held more than one offices during the check period which
they are alleged to have abused; however, there will be no question of any doubt if on the date when
the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in
S.A. Venkataraman Vs. State (cited supra), is the date on which the cognizance is taken. If on that
date, the appellant is not a public servant, there will be no question of any sanction. If he continues
to be a public servant but in a different capacity or holding a different office than the one which is
alleged to have been abused, still there will be no question of sanction and in that case, there will
also be no question of any doubt arising because the doubt can arise only when the sanction is
necessary. In case of the present appellants, there was no question of there being any doubt because
basically there was no question of the appellants' getting any protection by a sanction.
33. We do not, therefore, agree with learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U.
Lalit arguing for the appellants, that the decision in Antulay's case (cited supra) and the subsequent
decisions require any reconsideration for the reasons argued before us. Even on merits, there is no
necessity of reconsidering the relevant ratio laid down in Antulay's case (cited supra).
34. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision
in Prakash Singh Badal v. State of Punjab (cited supra) to hold that the appellants in both the
appeals had abused entirely different office or offices than the one which they were holding on the
date on which cognizance was taken and, therefore, there was no necessity of sanction under Section
19 of the Act as held in K. Karunakaran v. State of Kerala (cited supra) and the later decision in
Prakash Singh Badal v. State of Punjab (cited supra). The appeals are without any merit and are
dismissed.
............................J.
[V.S. Sirpurkar] ..........................J.
[T.S. THAKUR] New Delhi;
July 4, 2011.

1
REPORTABLE

CRIMINAL APPEAL NOS. 1077-1081 OF 2013
Central Bureau of Investigation,

Bank Securities & Fraud Cell .....Appellant
Versus
Ramesh Gelli and Others ...Respondents
WITH
WRIT PETITION (CRL.) NO. 167 OF 2015
Ramesh Gelli ...Writ Petitioner
Versus
Central Bureau of Investigation through

Superintendent of Police, BS & FC & Anr. ...Respondents
JUDGMENT
PER RANJAN GOGOI, J.
1. I have had the privilege of going through the judgment of
my learned brother Prafulla C. Pant, J. Though I am in full
agreement with the conclusions reached by my learned
brother, I would like to give my own reasons for the same.

2
2. The question arising has to be answered firstly within the
four corners of the definition of “public servant” as contained
in Section 2(c) of the Prevention of Corruption Act, 1988
(hereinafter referred to as ‘the PC Act’), particularly, those
contained in Section 2(c)(viii), which is extracted below.
2. “Definitions.-In this Act, unless the context otherwise

requires,-
(c) “Public Servant” means,-
(i) xxxx xxxxx
(ii) xxxx xxxxx
(iii) xxxx xxxxx
(iv) xxxx xxxxx
(v) xxxx xxxxx
(vi) xxxx xxxxx
(vii) xxxx xxxxx
(viii) any person who holds an office by virtue of which he

is authorized or required to perform any public duty;”
(ix) xxxx xxxxx
(x) xxxx xxxxx
(xi) xxxx xxxxx
(xii) xxxx xxxxx”
3. While understanding the true purport and effect of the
aforesaid provision of the PC Act, the meaning of the

3
expression “office” appearing therein as well as “public duty”
which is defined by Section 2(b) has also to be understood.
4. A reference to Section 2(b) of the PC Act which defines
“public duty” may at this stage be appropriate to be made.
“2.(b) “public duty” means a duty in discharge of which

the State, the public or the community at large has an
interest.”
Explanation.- In this clause “State” includes a
corporation established by or under a Central, Provincial
or State Act, or an authority or a body owned or controlled
or aided by the Government or a Government company as
defined in Section 617 of the Companies Act, 1956 (1 of
1956);”
5. The definition of public duty in Section 2(b) of the PC Act,
indeed, is wide. Discharge of duties in which the State, the
public or the community at large has an interest has been
brought within the ambit of the expression ‘public duty’.
Performance of such public duty by a person who is holding
an office which requires or authorize him to perform such duty
is the sine qua non of the definition of the public servant
contained in Section 2(c)(viii) of the PC Act. The expressions
‘office’ and ‘public duty’ appearing in the relevant part of the
PC Act would therefore require a close understanding.

4
6. In P.V. Narasimha Rao Vs. State (CBI/SPE)1 the
meaning of the expression ‘office’ appearing in the relevant
provision of the PC Act has been understood as “a position or
place to which certain duties are attached specially one of a
more or less public character.” Following the views expressed
by Lord Atkin in McMillan Vs. Guest2, this Court had
approved the meaning of the expression ‘office’ to be referable
to a position which has existence independent of the person
who fills up the same and which is required to be filled up in
succession by successive holders.
7. While there can be no manner of doubt that in the
Objects and Reasons stated for enactment of the Prevention of
Corruption Act, 1988 it has been made more than clear that
the Act, inter alia, envisages widening of the scope of the
definition of public servant, nevertheless, the mere
performance of public duties by the holder of any office cannot
bring the incumbent within the meaning of the expression
‘public servant’ as contained in Section 2(c) of the PC Act. The
broad definition of ‘public duty’ contained in Section 2(b)
1
(1998) 4 SCC 626
2
(1942) AC 561
5
would be capable of encompassing any duty attached to any
office inasmuch as in the contemporary scenario there is
hardly any office whose duties cannot, in the last resort, be
traced to having a bearing on public interest or the interest of
the community at large. Such a wide understanding of the
definition of public servant may have the effect of obliterating
all distinctions between the holder of a private office or a
public office which, in my considered view, ought to be
maintained. Therefore, according to me, it would be more
reasonable to understand the expression “public servant” by
reference to the office and the duties performed in connection
therewith to be of a public character.
8. Coming to the next limb of the case, namely, the
applicability of the provisions of Section 46A of the Banking
Regulation Act, 1949 (hereinafter referred to as the ‘BR Act’)
what is to be found is that a chairman appointed on a whole
time basis, managing director, director, auditor, liquidator,
manager and any other employee of a banking company is
deemed to be a public servant for the purposes of Chapter IX
of the Indian Penal Code. Section 46A, was amended by Act

6
20 of 1994 to bring within its fold a larger category of
functionaries of a banking company. Earlier, only the
chairman, director and auditor had come within the purview
of the aforesaid Section 46A.
9. Sections 161 to 165A contained in Chapter IX of the
Indian Penal Code have been repealed by Section 31 of the
Prevention of Corruption Act, 1947 and the said offences have
been engrafted in Sections 7, 8, 9, 10, 11 and 12 of the
Prevention of Corruption Act, 1988. Section 166(as originally
enacted), Section 167 (with amendment), Sections 168, 169,
170 and 171 (as originally enacted) continue to remain in
Chapter IX of the Indian Penal Code even after enactment of
the Prevention of Corruption Act, 1988.
10. By virtue of Section 46A of the BR Act office
bearers/employees of a Banking Company (including a Private
Banking Company) were “public servants” for the purposes of
Chapter IX of the I.P.C. with the enactment of the PC Act the
offences under Section 161 to 165A included in Chapter IX of
Code came to be deleted from the said Chapter IX and
engrafted under Sections 7 to 12 of the PC Act. With the

7
deletion of the aforesaid provisions from Chapter IX of the
I.P.C. and inclusion of the same in the PC Act there ought to
have been a corresponding insertion in Section 46A of the BR
Act with regard to the deeming provision therein being
continued in respect of officials of a Banking Company insofar
as the offences under Sections 7 to 12 of the PC Act are
concerned. However, the same was not done. The Court need
not speculate the reasons therefor, though, perhaps one
possible reason could be the wide expanse of the definition of
“public servant” as made by Section 2(c) of the PC Act. Be that
as it may, in a situation where the legislative intent behind the
enactment of the PC Act was, inter alia, to expand the
definition of “public servant”, the omission to incorporate the
relevant provisions of the PC Act in Section 46A of the BR Act
after deletion of Sections 161 to 165A of the I.P.C. from
Chapter IX can be construed to be a wholly unintended
legislative omission which the Court can fill up by a process of
interpretation. Though the rule of casus omissus i.e. “what
has not been provided for in the statute cannot be supplied by
the Courts” is a strict rule of interpretation there are certain
well known exceptions thereto. The following opinion of Lord

8
Denning in Seaford Court Estates Ltd. Vs. Asher3 noticed
and approved by this Court may be taken note of.
“The English language is not an instrument of

mathematical precision. Our literature would be
much the poorer if it were ....He (The Judge) must
set to work in the constructive task of finding the
intention of Parliament, and he must do this not
only from the language of the statute, but also
from a consideration of the social conditions
which gave rise to it, and of the mischief which it
was passed to remedy, and then he must
supplement the written word so as to give “force
and life” to the intention of the legislature.....A
judge should ask himself the question, how, if
the makers of the Act had themselves come
across this ruck in the texture of it, they would
have straightened it out? He must then do as
they would have done. A judge must not alter the
material of which the Act is woven, but he can
and should iron out the creases.”
In Magor & St. Mellons Rural District Council Vs.
Newport Corporation4 the learned judge restated the above
principles in a somewhat different form to the following effect :
“We sit here to find out the intention of

Parliament and of ministers and carry it out,
and we do this better by filling in the gaps and
making sense of the enactment than by opening
it up to destructive analysis.”
11. Though the above observations of Lord Denning had
invited sharp criticism in his own country we find reference to

3
(1949) 2AllER 155 at page 164
4
(1950)2AllER 1226
9
the same and implicit approval thereof in the judicial quest to
define the expression “industry” in Bangalore Water Supply
& Sewerage Board Vs. A Rajappa and Others 5. Paragraphs
147 and 148 of the opinion of Chief Justice M.H. Beg in
Bangalore Water Supply & Sewerage Board (supra), which
are quoted below, would clearly indicate the acceptance of this
Court referred to earlier.
“147. My learned Brother has relied on what

was considered in England a somewhat
unorthodox method of construction in Seaford
Court Estates Ltd. v. Asher [(1949 2 ALL ER 155,
164], where Lord Denning, L.J., said :
When a defect appears a Judge cannot

simply fold his hands and blame the
draftsman. He must set to work on the
constructive task of finding the intention of
Parliament — and then he must
supplement the written words so as to
give ‘force and life’ to the intention of
legislature. A Judge should ask himself
the question how, if the makers of the Act
had themselves come across this ruck in
the texture of it, they would have
straightened it out? He must then do as
they would have done. A Judge must not
alter the material of which the Act is
woven, but he can and should iron out the
creases.
When this case went up to the House of Lords it

appears that the Law Lords disapproved of the
5
(1978) 2 SCC 213
10
bold effort of Lord Denning to make ambiguous

legislation more comprehensible. Lord Simonds
found it to be “a naked usurpation of the
legislative function under the thin disguise of
interpretation”. Lord Morton (with whom Lord
Goddard entirely agreed) observed: “These
heroics are out of place” and Lord Tucker said
“Your Lordships would be acting in a legislative
rather than a judicial capacity if the view put
forward by Denning, L.J., were to prevail.”
148. Perhaps, with the passage of time, what

may be described as the extension of a method
resembling the “arm-chair rule” in the
construction of wills. Judges can more frankly
step into the shoes of the legislature where an
enactment leaves its own intentions in much too
nebulous or uncertain a state. In M. Pentiah v.
Muddala Veeramallappa [(1961) 2 SCR 295],
Sarkar, J., approved of the reasoning, set out
above, adopted by Lord Denning. And, I must say
that, in a case where the definition of “industry”
is left in the state in which we find it, the
situation perhaps calls for some judicial heroics to
cope with the difficulties raised. (Underlining is
mine)
12. There are other judicial precedents for the view that I
have preferred to take and reach the same eventual conclusion
that my learned brother Prafulla C. Pant, J. has reached. I
would like to refer to only one of them specifically, namely, the
decision of a Constitution Bench of this Court in Dadi
Jagannadham Vs. Jammulu Ramulu and others6.
6
(2001) 7 SCC 71
11
Order XXI Rule 89 read with Rule 92(2) of the CPC
provided for filing of an application to set aside a sale. Such an
application was required to be made after deposit of the
amounts specified within 30 days from the date of the sale.
While the said provision did not undergo any amendment,
Article 127 of the Limitation Act, 1963 providing a time limit of
30 days for filing of the application to set aside the sale was
amended and the time was extended from 30 days to 60 days.
Taking note of the objects and reasons for the amendment of
the Limitation Act, namely, that the period needed to be
enlarged from 30 to 60 days as the period of 30 days was
considered to be too short, a Constitution Bench of this Court
in Dadi Jagannadham (supra) harmonised the situation by
understanding Order XXI rule 89 to be casting an obligation
on the Court to set aside the sale if the application for setting
aside along with deposit is made within 30 days. However, if
such an application along with the deposit is made after 30
days but before the period of 60 days as contemplated by
Article 127 of the Limitation Act, 1963, (as amended) the
Court would still have the discretion to set aside the same.
The period of 30 days in Order 21 Rule 89/92(2) CPC referred

12
to hereinabove was subsequently (by Act 22 of 2002) amended
to 60 days also.
13. Turing to the case in hand there can be no dispute that
before enactment of the PC Act, Section 46A of the BR Act had
the effect of treating the concerned employees/office bearers of
a Banking Company as public servants for the purposes of
Chapter IX of the IPC by virtue of the deeming provision
contained therein. The enactment of the PC Act with the clear
intent to widen the definition of ‘public servant’ cannot be
allowed to have the opposite effect by expressing judicial
helplessness to rectify or fill up what is a clear omission in
Section 46A of the BR Act. The omission to continue to extend
the deeming provisions in Section 46A of the BR Act to the
offences under Sections 7 to 12 of the PC Act must be
understood to be clearly unintended and hence capable of
admitting a judicial exercise to fill up the same. The
unequivocal legislative intent to widen the definition of “public
servant” by enacting the PC Act cannot be allowed to be
defeated by interpreting and understanding the omission in

13
Section 46A of the BR Act to be incapable of being filled up by
the court.
14. In the above view of the matter, I also arrive at the same
conclusion as my learned Brother Prafulla C. Pant, J. has
reached, namely, that the accused respondents are public
servants for the purpose of the PC Act by virtue of the
provisions of Section 46A of the Banking Regulation Act, 1949
and the prosecutions launched against the accused
respondents are maintainable in law. Consequently, the
criminal appeals filed by the C.B.I. are allowed and Writ
Petition (Criminal) No. 167 of 2015 is dismissed.
........................................J.
[RANJAN GOGOI]
NEW DELHI
FEBRUARY 23, 2016
1
CRIMINAL APPEAL NOS. 1077-1081 OF 2013
Central Bureau of Investigation,

Bank Securities & Fraud Cell … Appellant
Versus
Ramesh Gelli and others …Respondents
WITH
WRIT PETITION (CRL.) NO. 167 OF 2015
Ramesh Gelli … Writ Petitioner
Versus
Central Bureau of Investigation through

Superintendent of Police, BS & FC & Anr. …Respondents
JUDGMENT
Prafulla C. Pant, J.
Appellant Central Bureau of Investigation (C.B.I)
has challenged the judgment and order dated
13.07.2009, passed by the High Court of Judicature at

2
Bombay whereby Criminal Revision Application No. 131
of 2007 (filed by CBI) has been dismissed, and Criminal
Writ Petition Nos. 2400, 2401, 2402 and 2403 of 2008,
filed by the accused/respondent are allowed in part, and
upheld the order dated 05.02.2007 passed by the trial
court i.e. Special Judge/Additional Sessions Judge,
Mumbai. The courts below have held that cognizance
cannot be taken against the accused namely Ramesh
Gelli Chairman and Managing Director, and Sridhar
Subasri, Executive Director of Global Trust Bank, on the
ground that they are not public servants.
2. Writ Petition (Criminal) No. 167 of 2015 has been
filed before this Court by accused Ramesh Gelli praying
quashing of charge sheet filed by CBI in connection with
FIR No. RC BD.1/ 2005/E/0003 dated 31.03.2005
relating to offences punishable under Section 120B read
with Sections 420, 467, 468, 471 of Indian Penal Code
(IPC) and offence punishable under Section 13(2) read
with Section 13(1)(d) of the Prevention of Corruption Act,

3
1988 (for short “the P.C. Act, 1988”), pending before
Special Judge, CBI, Patiala House Courts, New Delhi.
3. Briefly stated prosecution case is that the Global
Trust Bank (hereinafter referred as “GTB”) was
incorporated on 29.10.1993 as banking company under
Companies Act, 1956. Said Bank was issued licence
dated 06.09.1994 under Banking Regulation Act, 1949
by Reserve Bank of India (for short “RBI”). Ramesh Gelli
(writ petitioner before this Court) was Chairman and
Managing Director, and Sridhar Subasri (writ petitioner
before the High Court) was Executive Director of the
Bank. The two were also promoters of GTB. For raising
their contribution to the capital, the two accused
(Ramesh Gelli and Sridhar Subasri) obtained loans from
various individuals and companies, including M/s.
Beautiful Group of Companies of accused Rajesh Mehta
and Vijay Mehta, and M/s. Trinity Technomics Services
Pvt. Ltd., of which accused Vijay Mehta and his
employees were directors. M/s. Beautiful Group of
Companies opened their first account in the name of

4
Beautiful Diamonds Ltd. with G.T.B. in the year 1994-95.
Investigation revealed that various credit facilities were
allowed to said company by Ramesh Gelli and Sridhar
Subasri, and they fraudulently instructed the branch
heads, without following norms for sanctioning the credit
facilities. The duo (Ramesh Gelli and Sridhar Subasri),
abusing their official positions, sanctioned higher credit
limits to M/s. Beautiful Diamonds Ltd. against
regulations. According to CBI, the investigation further
revealed that in pursuance to the alleged conspiracy of
the accused the funds of GTB were diverted, and release
of Rs.5.00 crores was made in the name of M/s.
Beautiful Realtors Ltd. on the request of Directors of
M/s. Beautiful Diamonds Ltd. Said amount was further
transferred to already overdrawn account of M/s.
Beautiful Diamonds Ltd. In April, 2001, Directors of
Beautiful Group of Companies in pursuance of
conspiracy with other accused submitted another
application for sanction of Rs.3.00 crores as diamond
loan in the name of M/s. Crystal Gems. Ramesh Gelli,
Sridhar Subasri and other accused, who were Directors

5
of Beautiful Group of Companies, said to have caused
total wrongful loss of about Rs.41.00 crores to GTB. The
accounts of Beautiful Diamonds Ltd. and other
companies, which availed funds from GTB, should have
been declared Non Performing Assets (NPA), but accused
Ramesh Gelli and Sridhar Subasri allegedly manipulated
and showed the accounts of Beautiful Realtors Ltd. and
Crystal Gems as higher profit yielding accounts. The
scam did not come to the light till 2005.
4. On 14.08.2004 GTB merged/amalgamated with
Oriental Bank of Commerce (for brevity “OBC”). An FIR
dated 31.03.2005 in respect of offences punishable under
Sections 420, 467, 468, 471 IPC and under Section 13(2)
read with Section 13(1)(d) of the P.C. Act of 1988 was
registered by C.B.I on the complaint made by the Chief
Vigilance Officer, OBC, wherein the allegations were
made that Ramesh Gelli and others, including Directors
of M/s. World Tex Limited (for short “WTL”) entered into a
criminal conspiracy to cheat GTB causing wrongful loss
to the tune of Rs.17.46 crores, and thereby earned

6
corresponding wrongful gain. After investigation, charge
sheet was filed in said matter before the Special Judge,
CBI, Patiala House Courts, New Delhi.
5. Another First Information Report No.
RC.12(E)/2005/ CBI/BS & FC/Mumbai was registered
by C.B.I. on 09.08.2005 for offences punishable under
Section 120B read with Sections 409 and 420 IPC,
initially against two employees of GTB and two private
persons Rajesh Mehta and Prashant Mehta on the
complaint dated 26.07.2005 lodged by the Chief Vigilance
Officer, OBC. It is relevant to mention here that GTB was
a private sector bank, before its amalgamation in August
2004 with OBC, a public sector bank. In the FIR No. RC
12E/2005/CBI/B.S & FC/Mumbai Dt. 09.08.2005, it
was alleged that GTB sanctioned and disbursed loans by
throwing all prudent banking norms to winds and thus
created a large quantum of Non Performing Assets (NPA)
jeopardizing the interests of thousands of depositors, but
painted a rosy financial picture. These loan transactions
came to the light during audit after amalgamation of GTB

7
with OBC, and it was noted that two accounts, namely
that of M/s. Beautiful Diamonds Ltd. and M/s. Crystal
Gems were used to siphon out funds of the Bank. After
investigation, charge sheets were filed in this matter
before Special Judge, Mumbai in respect of offences
punishable under Section 120B read with Sections 409
and 420 IPC and under Section 13(2) read with Section
13(1)(d) of the P.C. Act, 1988. However, on 05.02.2007
the Special Judge, Mumbai declined to take cognizance of
offence punishable under Section 13(2) read with S.3(1)
(d) P.C Act, 1988, on the ground that accused No. 1
Ramesh Gelli and accused No. 2 Sridhar Subasri were
not public servants on the dates transactions said to
have taken place, i.e. before amalgamation, and the
Special Judge directed that the charge sheet may be
returned for being submitted to appropriate Metropolitan
Magistrate for taking cognizance in respect of offences
punishable under IPC, i.e. for offence other than
punishable under the P.C. Act, 1988.

8
6. Since the High Court of Judicature at Bombay has
upheld the order dated 05.02.2007 by the impugned
order, the CBI has approached this Court through
Special Leave. Further, since W.P.(Crl.) No. 167/2015
filed by accused Ramesh Gelli also involves similar
question of law in the case at Delhi, as such both the
connected matters are being disposed of by this common
order.
7. The common question of law involved in these
criminal appeals and connected writ petition, filed before
us, is:
Whether the Chairman, Directors and Officers of

Global Trust Bank Ltd. (a private bank before its
amalgamation with the Oriental Bank of
Commerce), can be said to be public servants for
the purposes of their prosecution in respect of
offences punishable under Prevention of Corruption
Act, 1988 or not ?
8. It is admitted fact that GTB was a private sector
bank operating under banking licence dated 06.09.1994,
issued by RBI under Banking Regulation Act, 1949. It is
also not disputed that on 14.08.2004 GTB
merged/amalgamated with OBC. The transactions of

9
alleged fraud, cheating, misappropriation and corruption
relate to the period between 1994 to 2001, i.e. prior to
amalgamation with public sector bank (OBC). The
dispute relates as to whether the then
Chairman-cum-Managing Director and Executive
Director of GTB come under definition of ‘public servant’
or not, for the purposes of the P.C. Act, 1988.
9. It is vehemently argued by Shri Mohan Parasaran
and Shri Sidharth Luthra, senior advocates appearing for
the accused that the accused are not public servants,
and cognizance cannot be taken against the writ
petitioner Ramesh Gelli and accused/respondent Sridhar
Subasri, who were said to be the
Chairman-cum-Managing Director and Executive
Director respectively of GTB before its amalgamation. It is
further argued that a person cannot be said to have been
performing a public duty unless he holds some public
office, and in this connection it is submitted that the
accused did not hold any public office during the period
offences said to have been committed. It is also

10
contended that since Sections 161 to 165A in Chapter IX
of IPC are repealed by Section 31 of P.C. Act, 1988,
Section 46A of Banking Regulation Act, 1949 is of little
help to the prosecution. Mr. Luthra, learned senior
counsel, further submitted that the relationship between
the customer of a bank, and the bank is that of a creditor
and debtor, and the transactions between the two are
commercial in nature, as such, no public duty is
involved.
10. On the other hand, Shri Tushar Mehta, learned
senior counsel for CBI argued that accused Ramesh Gelli
and Sridhar Subasri were public servants in view of
definition contained in Section 2(c) of P.C. Act, 1988.
Our attention is also drawn to Section 46A of Banking
Regulation Act, 1949, which provides that a whole time
Chairman, Managing Director, or Director of a banking
company shall be deemed to be a public servant. It is
also contended that a banking company as defined under
Section 5(b) read with Section 35(A) of Banking
Regulation Act, 1949 is nothing but extended arm of

11
Reserve Bank of India. In support of arguments
advanced on behalf of CBI, reliance is placed on the
principle of law laid down by this Court in Govt. of
Andhra Pradesh and Others vs. P.Venku Reddy7.
Lastly, it is submitted that a private body discharging
public duty or positive obligation of public nature
actually performs public function. In this connection,
reference was made to the observations made by this
court in paragraph 18, in Federal Bank Ltd. vs. Sagar
Thomas and others8.
11. We have considered the arguments and the counter
arguments and also gone through the relevant case laws
on the issue.
12. Before further discussion it is just and proper to
examine the object for which the Prevention of
Corruption Act, 1988 was enacted by the Parliament.
The Statement of Objects and Reasons of the Bill is
reproduced below: -
7
(2002) 7 SCC 631)
8
(2003) 10 SCC 733
12
“1. The bill is intended to make the

existing anti-corruption laws more effective by
widening their coverage and by strengthening
the provisions.
2. The Prevention of Corruption Act,

1947, was amended in 1964 based on the
recommendations of the Santhanan
Committee. There are provisions in Chapter IX
of the Indian Penal Code to deal with public
servants and those who abet them by way of
criminal misconduct. There are also
provisions in the Criminal Law Amendment
Ordinance, 1944, to enable attachment of
ill-gotten wealth obtained through corrupt
means, including from transferees of such
wealth. The bill seeks to incorporate all these
provisions with modifications so as to make
the provisions more effective in combating
corruption among public servants.
3. The bill, inter alia, envisages

widening the scope of the definition of the
expression ‘public servant’, incorporation of
offences under sections 161 to 165A of the
Indian Penal Code, enhancement of penalties
provided for these offences and incorporation
of a provision that the order of the trial court
upholding the grant of sanction for
prosecution would be final if it has not already
been challenged and the trial has commenced.
In order to expedite the proceedings,
provisions for day-to-day trial of cases and
prohibitory provisions with regard to grant of
stay and exercise of powers of revision or
interlocutory orders have also been included.
4. Since the provisions of section 161A

are incorporated in the proposed legislation
with an enhanced punishment, it is not
necessary to retain those sections in the
13
Indian Penal Code. Consequently, it is

proposed to delete those sections with the
necessary saving provision.
5. The notes on clauses explain in

detail the provisions of the Bill.”
(Emphasis supplied)
From the Statement of Objects and Reasons of the
P.C. Bill it is clear that the Act was intended to make the
anti corruption law more effective by widening its
coverage. It is also clear that the Bill was introduced to
widen the scope of the definition of ‘public servant’.
Before P.C. Act, 1988, it was the Prevention of Corruption
Act, 1947 and Sections 161 to 165A in Chapter IX of IPC
which were governing the field of law relating to
prevention of corruption. The Parliament repealed the
Prevention of Corruption Act, 1947 and also omitted
Section 161 to 165A of I.P.C as provided under Sections
30 and 31 of P.C. Act, 1988. Since a new definition of
‘public servant’ is given under P.C. Act, 1988, it is not
necessary here to reproduce the definition of ‘public
servant’ given in Section 21 of IPC.

14
13. Section 2(c) of P.C. Act, 1988, which holds the field,
defines ‘public servant’ as under: -
“2.(c) "public servant" means-
(i) any person in the service or pay of

the Government or remunerated by
the Government by fees or
commission for the performance of
any public duty;
(ii) any person in the service or pay of a

local authority ;
(iii) any person in the service or pay of a

corporation established by or under
a Central, Provincial or State Act, or
an authority or a body owned or
controlled or aided by the
Government or a Government
company as defined in section 617
of the Companies Act, 1956;
(iv) any Judge, including any person

empowered by law to discharge,
whether by himself or as a member
of any body of persons, any
adjudicatory functions;
(v) any person authorised by a court of

justice to perform any duty, in
connection with the administration
of justice, including a liquidator,
receiver or commissioner appointed
by such court;
15
(vi) any arbitrator or other person to

whom any cause or matter has been
referred for decision or report by a
court of justice or by a competent
public authority;
(vii) any person who holds an office by

virtue of which he is empowered to
prepare, publish, maintain or revise
an electoral roll or to conduct an
election or part of an election;
(viii) any person who holds an office by

virtue of which he is authorised or
required to perform any public duty;
(ix) any person who is the president,

secretary or other office-bearer of a
registered cooperative society
engaged in agriculture, industry,
trade or banking, receiving or
having received any financial aid
from the Central Government or a
State Government or from any
corporation established by or under
a Central, Provincial or State Act, or
any authority or body owned or
controlled or aided by the
Government or a Government
company as defined in section 617
of the Companies Act, 1956;
(x) any person who is a chairman,

member or employee of any Service
Commission or Board, by whatever
name called, or a member of any
selection committee appointed by
16
such Commission or Board for the

conduct of any examination or
making any selection on behalf of
such Commission or Board;
(xi) any person who is a Vice-Chancellor

or member of any governing body,
professor, reader, lecturer or any
other teacher or employee, by
whatever designation called, of any
University and any person whose
services have been availed of by a
University or any other public
authority in connection with holding
or conducting examinations;
(xii) any person who is an office-bearer

or an employee of an educational,
scientific, social, cultural or other
institution, in whatever manner
established, receiving or having
received any financial assistance
from the Central Government or any
State Government, or local or other
public authority.
Explanation 1.-Persons falling under

any of the above sub-clauses are public
servants, whether appointed by the
Government or not.
Explanation 2.-Wherever the words

"public servant" occur, they shall be
understood of every person who is in
actual possession of the situation of a
public servant, whatever legal defect
17
there may be in his right to hold that

situation.”
14. Above definition shows that under Clause (viii)
contained in Section 2(c) of P.C. Act, 1988 a person who
holds an office by virtue of which he is authorized or
required to perform any public duty, is a public servant.
Now, for the purposes of the present case this court is
required to examine as to whether the
chairman/managing director or executive director of a
private bank operating under licence issued by RBI
under Banking Regulation Act, 1949, held/holds an
office and performed /performs public duty so as to
attract the definition of ‘public servant’ quoted above.
15. Section 2(b) of P.C. Act, 1988 defines ‘public duty’
as under:
“public duty” means a duty in the discharge of

which the State, the public or the community
at large has an interest”.
16. But, what is most relevant for the purpose of this
case is Section 46A of Banking Regulation Act, 1949,
which reads as under: -

18
“46A. Chairman, director etc., to be public

servants for the purposes of Chapter IX of
the Indian Penal Code. – Every chairman who
is appointed on a whole-time basis, managing
director, director, auditor, liquidator, manager
and any other employee of a banking company
shall be deemed to be a public servant for the
purposes of Chapter IX of the Indian Penal
Code (45 of 1860).”
(Emphasis supplied)
17. Section 46A was inserted in Banking Regulation
Act, 1949 by Act No. 95/56 with effect from 14.01.1957.
The expression “every chairman who is appointed on a
whole time basis, managing director, director, auditor”
was substituted by Act No. 20/94 with effect from
31.01.1994 in place of “every chairman, director,
auditor”. As such managing director of a banking
company is also deemed to be a public servant. In the
present case transactions in question relate to the period
subsequent to 31.01.1994.
18. In Federal Bank Ltd. v. Sagar Thomas and
others (supra) this Court has held that a private
company carrying banking business as a scheduled bank
cannot be termed as a company carrying any statutory or

19
public duty. However, in said case the Court was
examining as to whether writ can be issued under Article
226 of the Constitution of India against a scheduled bank
or not. There was no issue before the Court relating to
deeming fiction contained in Section 46A of Banking
Regulation Act, 1949 in respect of a chairman/managing
director or director of a banking company against whom
a crime relating to anti-corruption was registered.
19. In a recent case of State of Maharashtra & ors. v.
Brijlal Sadasukh Modani9, this Court has observed as
under: -
“21. As we notice, the High Court has really

been swayed by the concept of Article 12 of the
Constitution, the provisions contained in the
1949 Act and in a mercurial manner taking
note of the fact that the multi-state society is
not controlled or aided by the Government has
arrived at the conclusion. In our considered
opinion, even any grant or any aid at the time
of establishment of the society or in any
construction or in any structural concept or
any aspect would be an aid. We are inclined to
think so as the term ‘aid’ has not been defined.
A sprinkle of aid to the society will also bring
an employee within the definition of ‘public
servant’. The concept in entirety has to be
observed in the backdrop of corruption…….”
9
2015 SCC Online SC 1403
20
20. In P.V. Narasimha Rao vs. State (CBI/SPE)10, this
Court has explained the word “office” in following
manner: -
“61. ……..The word “office” is normally

understood to mean “a position to which
certain duties are attached, especially a place
of trust, authority or service under constituted
authority”. (See: Oxford Shorter English
Dictionary, 3rd Edn., p. 1362.) In McMillan v.
Guest (1942 AC 561) Lord Wright has said:
“The word ‘office’ is of indefinite content.

Its various meanings cover four columns
of the New English Dictionary, but I take
as the most relevant for purposes of this
case the following:
‘A position or place to which certain

duties are attached, especially one
of a more or less public character.’ ”
In the same case Lord Atkin gave the following

meaning:
“… an office or employment which was

subsisting, permanent, substantive
position, which had an existence
independent of the person who filled it,
which went on and was filled in
succession by successive holders.”
In Statesman (P) Ltd. v. H.R. Deb (AIR 1968 SC

1495) and Mahadeo v. Shantibhai [(1969) 2
SCR 422] this Court has adopted the meaning
given by Lord Wright when it said:
“An office means no more than a position

to which certain duties are attached.”
10
(1998) 4 SCC 626
21
21. Attention of this court is drawn on behalf of the
accused to the case of Housing Board of Haryana v.
Haryana Housing Board Employees’ Union and
others11, wherein this Court has held that when
particular words pertaining to a class of genus are
followed by general words, the latter, namely, the general
words are construed as limited to the things of the same
kind as those specified, and this is known as the rule of
ejusdem generis reflecting an attempt to reconcile
incompatibility between the specified and general words.
This case is of little help to the accused in the present
case as managing director and director are specifically
mentioned in Section 46A of Banking Regulation Act,
1949.
22. In Manish Trivedi v. State of Rajasthan12, which
pertains to a case registered against a councillor under
Prevention of Corruption Act, 1988, this Court, while
11
(1996) 1 SCC 95
12
(2014) 14 SCC 420
22
interpreting the word “public servant”, made following
observations: -
“14. Section 87 of the Rajasthan

Municipalities Act, 1959 makes every Member
to be public servant within the meaning of
Section 21 of the Penal Code, 1860 and the
same reads as follows:
“87. Members, etc. to be deemed

public servants.—(1) Every member,
officer or servant, and every lessee of the
levy of any municipal tax, and every
servant or other employee of any such
lessee shall be deemed to be a public
servant within the meaning of Section 21
of the Penal Code, 1860 (Central Act 45 of
1860).
(2) The word ‘Government’ in the

definition of ‘legal remuneration’ in
Section 161 of that Code shall, for the
purposes of sub-section (1) of this
section, be deemed to include a
Municipal Board.”
From a plain reading of the aforesaid provision

it is evident that by the aforesaid section the
legislature has created a fiction that every
Member shall be deemed to be a public servant
within the meaning of Section 21 of the Penal
Code. It is well settled that the legislature is
competent to create a legal fiction. A deeming
provision is enacted for the purpose of
assuming the existence of a fact which does
not really exist. When the legislature creates a
legal fiction, the court has to ascertain for
what purpose the fiction is created and after
ascertaining this, to assume all those facts and
consequences which are incidental or
23
inevitable corollaries for giving effect to the

fiction. In our opinion, the legislature, while
enacting Section 87 has, thus, created a legal
fiction for the purpose of assuming that the
Members, otherwise, may not be public
servants within the meaning of Section 21 of
the Penal Code but shall be assumed to be so
in view of the legal fiction so created. In view of
the aforesaid, there is no escape from the
conclusion that the appellant is a public
servant within the meaning of Section 21 of
the Penal Code.
xxx xxx xxx
16. Under the scheme of the Rajasthan

Municipalities Act it is evident that the
appellant happens to be a Councillor and a
Member of the Board. Further in view of
language of Section 87 of the Rajasthan
Municipalities Act, he is a public servant
within the meaning of Section 21 of the Penal
Code. Had this been a case of prosecution
under the Prevention of Corruption Act, 1947
then this would have been the end of the
matter. Section 2 of this Act defines “public
servant” to mean public servant as defined
under Section 21 of the Penal Code. However,
under the Prevention of Corruption Act, 1988,
with which we are concerned in the present
appeal, the term “public servant” has been
defined under Section 2(c) thereof. In our
opinion, prosecution under this Act can take
place only of such persons, who come within
the definition of public servant therein. The
definition of “public servant” under the
Prevention of Corruption Act, 1947 and
Section 21 of the Penal Code is of no
consequence. The appellant is sought to be
prosecuted under the Prevention of Corruption
Act, 1988 and, hence, to determine his status
24
it would be necessary to look into its

interpretation under Section 2(c) thereof, read
with the provisions of the Rajasthan
Municipalities Act.
xxx xxx xxx
19. The present Act (the 1988 Act) envisages

widening of the scope of the definition of the
expression “public servant”. It was brought in
force to purify public administration. The
legislature has used a comprehensive
definition of “public servant” to achieve the
purpose of punishing and curbing corruption
among public servants. Hence, it would be
inappropriate to limit the contents of the
definition clause by a construction which
would be against the spirit of the statute.
Bearing in mind this principle, when we
consider the case of the appellant, we have no
doubt that he is a public servant within the
meaning of Section 2(c) of the Act. Clause (viii)
of Section 2(c) of the present Act makes any
person, who holds an office by virtue of which
he is authorised or required to perform any
public duty, to be a public servant. The word
“office” is of indefinite connotation and, in the
present context, it would mean a position or
place to which certain duties are attached and
has an existence which is independent of the
persons who fill it. Councillors and Members of
the Board are positions which exist under the
Rajasthan Municipalities Act. It is independent
of the person who fills it. They perform various
duties which are in the field of public duty.
From the conspectus of what we have observed
above, it is evident that appellant is a public
servant within Section 2(c)(viii) of the
Prevention of Corruption Act, 1988.”
25
(Emphasis supplied)
23. At the end it is relevant to mention that in the case
of Govt. of A.P. and others vs. Venku Reddy (supra), in
which while interpreting word ‘public servant’ this court
has made following observations:
“12. In construing the definition of “public

servant” in clause (c) of Section 2 of the 1988 Act,
the court is required to adopt a purposive
approach as would give effect to the intention of
the legislature. In that view the Statement of
Objects and Reasons contained in the Bill leading
to the passing of the Act can be taken assistance
of. It gives the background in which the legislation
was enacted. The present Act, with a much wider
definition of “public servant”, was brought in force
to purify public administration. When the
legislature has used such a comprehensive
definition of “public servant” to achieve the
purpose of punishing and curbing growing
corruption in government and semi-government
departments, it would be appropriate not to limit
the contents of the definition clause by
construction which would be against the spirit of
the statute. The definition of “public servant”,
therefore, deserves a wide construction. (See State
of M.P. v. Shri Ram Singh (2000) 5 SCC 88)”
24. In the light of law laid down by this court as above,
it is clear that object of enactment of P.C. Act, 1988, was
to make the anti corruption law more effective and widen
its coverage. In view of definition of public servant in

26
Section 46A of Banking Regulation Act, 1949 as amended
the Managing Director and Executive Director of a
Banking Company operating under licence issued by
Reserve Bank Of India, were already public servants, as
such they cannot be excluded from definition of ‘public
servant’. We are of the view that over the general
definition of ‘public servant’ given in Section 21 of IPC, it
is the definition of ‘public servant’ given in the P.C. Act,
1988, read with Section 46-A of Banking Regulation Act,
which holds the field for the purposes of offences under
the said Act. For banking business what cannot be
forgotten is Section 46A of Banking Regulation Act, 1949
and merely for the reason that Sections 161 to 165A of
IPC have been repealed by the P.C. Act, 1988, relevance
of Section 46A of Banking Regulation Act, 1949, is not
lost.
25. Be it noted that when Prevention of Corruption Act,
1988 came into force, Section 46 of Banking Regulation
Act, 1949 was already in place, and since the scope of
P.C. Act, 1988 was to widen the definition of “public

27
servant”. As such, merely for the reason that in 1994,
while clarifying the word “chairman”, legislature did not
substitute words “for the purposes of Prevention of
Corruption Act, 1988” for the expression “for the
purposes of Chapter IX of the Indian Penal Code (45 of
1860)” in Section 46A of Banking Regulation Act, 1949,
it cannot be said, that the legislature had intention to
make Section 46A inapplicable for the purposes of P.C.
Act, 1988, by which Sections 161 to 165A of IPC were
omitted, and the offences stood replaced by Sections 7 to
13 of P.C. Act, 1988.
26. A law which is not shown ultravires must be given
proper meaning. Section 46-A of Banking Regulation
Act, 1949, cannot be left meaningless and requires
harmonious construction. As such in our opinion, the
Special Judge (CBI) has erred in not taking cognizance of
offence punishable under Section 13(2) read with Section
13(1)(d) of P.C. Act, 1988. However, we may make it
clear that in the present case the accused cannot be said
to be public servant within the meaning of Section 21

28
IPC, as such offence under Section 409 IPC may not get
attracted, we leave it open for the trial court to take
cognizance of other offences punishable under Indian
Penal Code, if the same get attracted.
27. Therefore, having considered the submissions made
before us, and after going through the papers on record,
and further keeping in mind the Statement of Objects
and Reasons of the Bill relating to Prevention of
Corruption Act, 1988 read with Section 46A of Banking
Regulation Act, 1949, we are of the opinion that the
courts below have erred in law in holding that accused
Ramesh Gelli and Sridhar Subasri, who were
Chairman/Managing Director and Executive Director of
GTB respectively, were not public servants for the
purposes of Prevention of Corruption Act, 1988. As such,
the orders impugned are liable to be set aside.
Accordingly, without expressing any opinion on final
merits of the cases before the trial courts in Mumbai and
Delhi, Criminal Appeal Nos. 1077-1081 of 2013 filed by

29
CBI, are allowed, and Writ Petition (Crl.) No. 167 of 2015
stands dismissed.
……………………………..J.
[PRAFULLA C. PANT]
New Delhi;
February 23, 2016.
Chittaranjan Das vs State Of Orissa on 4 July, 2011

Bench: G.S. Singhvi, Chandramauli Kr. Prasad
REPORTABLE
CRIMINAL APPEAL NO.820 OF 2007
CHITTARANJAN DAS ... APPELLANT
VERSUS
STATE OF ORISSA ...RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Bereft of unnecessary details the facts giving rise to the present appeal are that the appellant, a
member of the Orissa Administrative Service, at the relevant time was serving as a Deputy Secretary
to the Government of Orissa in the Irrigation Department. The officers of the Vigilance Department
searched his house after obtaining a search warrant from the Court, on 17th March, 1992.
It led to registration of a first information report against the appellant. During the investigation, it
was found that the appellant possessed disproportionate assets of Rs.5,58,752.40. As the appellant
was removable from service by the State Government, the Vigilance Department sought its sanction
for prosecution of the appellant. The State Government by its letter dated 13th May, 1997, declined
to grant sanction and advised that the proposal for prosecuting the appellant be dropped. The
appellant superannuated from service on 30th June, 1997. It seems that even after the retirement of
the appellant, the Vigilance Department wrote on 25th of March, 1998 for reconsideration of the
earlier order refusing the sanction for prosecution of the appellant. The State Government by its
letter dated 31st July, 1998 wrote back to the Vigilance Department and declined to grant sanction
for prosecution, as in its opinion there was no prima facie case against the appellant and the assets
held by him were not disproportionate to the known sources of his income. Accordingly, the State
Government reiterated that there is "no justification for reconsideration of the earlier orders
refusing the sanction of prosecution" of the appellant.

Notwithstanding the aforesaid refusal of the Government, the Vigilance Department on 10th
September, 1998 filed charge-sheet against the appellant under Section 5(2) read with Section
5(1)(e) of the Prevention of Corruption Act, 1947 alleging acquisition of disproportionate assets of
Rs.1.44.234.78 between 1st January, 1980 and 31st December, 1985. The charge-sheet was laid
before the Special Judge (Vig.), Bhubneshwar who by its order dated 2nd August, 1999 took
cognizance of the aforesaid offence and issued non-bailable warrant against the appellant.
2. Appellant, aggrieved by the above order taking Cognizance of offence and issuance of the non-
bailable warrant of arrest, filed petition under Section 482 of the Code of Criminal Procedure
seeking quashing of the aforesaid order inter alia on the ground that his prosecution without
sanction of the State Government is bad in law but the High Court by its Order dated 22nd
September, 2003 disposed of the application with liberty to the appellant to raise this contention
before Special Judge (Vig.) at the time of the framing of the charge.
3. Appellant, thereafter filed an application for discharge before the trial court which dismissed the
same by order dated 9th June, 2004 inter alia on the ground that the appellant having retired from
service, prior sanction is not necessary.
Appellant challenged the aforesaid order before the High Court which by the impugned order
rejected the challenge and while doing so observed as follows:
"6. On a conspectus of the facts and circumstances involved in the case and the
position of law in the matter of sanction vis-`-vis the impugned order, this Court does
not find any illegality in that order so as to invoke the inherent power with a view to
quash the impugned order. Be that is it may, it is made clear that the disputed
question as to whether in the present case a sanction order is necessary and whether
that was refused by the State Government and what is the consequence thereof, may
be gone into at the time of trial if raised by the accused-petitioner notwithstanding
rejection of his application by the impugned order inasmuch as the foregoing
discussion by this Court in any manner does not interfere with that right of the
accused to be pursued, if so legally advised at the time of trial."
4. Mr. Vinoo Bhagat appearing on behalf of the appellant submits that the State Government having
refused to grant sanction for prosecution and thereafter declined to reconsider this decision and
further having declined to grant sanction for the prosecution of the appellant his prosecution is
illegal and an abuse of the process of the Court.
5. Mr. S.C. Tripathy, however, appearing on behalf of the respondents submits that the charge-sheet
was filed after the retirement of the appellant and in fact on that basis cognizance of the offence was
taken and process issued thereafter and hence, the appellant cannot challenge his prosecution on
the ground of want of sanction. According to him, as the appellant ceased to be a public servant on
the date when the Court took cognizance of the offence and issued process, sanction for his
prosecution is not necessary at all.

6. We do not have the slightest hesitation in accepting the broad submission of Mr. Tripathi that
once the public servant ceases to be so on the date when the Court takes cognizance of the offence,
there is no requirement of sanction under the Prevention of Corruption Act. However, the position
is different in a case where Section 197 of the Code of Criminal Procedure has application.
In fact, the submission advanced finds support from the judgment of this Court in the case of N.
Bhargavan Pillai (dead) by LRs. & Anr. vs. State of Kerala AIR 2004 SC 2317 where it has been held
as follows :
"8. 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."
7. However, in the present case, we are faced with the situation in which Vigilance Department
asked the State Government to grant sanction while the appellant herein was in service which it
refused.
Not only that Vigilance Department sought for reconsideration of the decision by the State
Government which prayer was also rejected. In fact the State Government reiterated that there is no
prima facie case against the appellant and the assets held by him were not disproportionate to the
known sources of his income. Mr. Tripathy points out that refusal to grant sanction under Section 19
of the Prevention of corruption Act, 1947 while the appellant was in service is of no consequence as
undisputedly charge-sheet against the appellant was filed and further the Court had taken
cognizance of the offence and issued process after his retirement. He points out in the case of N.
Bhargavan Pillai (Supra) sanction sought for was refused but this Court did not find any illegality in
that.
8. We do not find any substance in the submission of Mr. Tripathy and the decision relied on is
clearly distinguishable. Sanction is a devise provided by law to safeguard public servants from
vexatious and frivolous prosecution. It is to give them freedom and liberty to perform their duty
without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at
the hands of the sanctioning authority to protect the innocent public servants from uncalled for
prosecution but not intended to shield the guilty. Here in the present case while the appellant was in
service sanction sought for his prosecution was declined by the State Government.
Vigilance Department did not challenge the same and allowed the appellant to retire from service.
After the retirement, Vigilance Department requested the State Government to reconsider its
decision, which was not only refused but the State Government while doing so clearly observed that
no prima-facie case of disproportionate assets against the appellant is made out. Notwithstanding

that Vigilance Department chose to file charge-sheet after the retirement of the appellant and on
that Special Judge had taken cognizance and issued process. We are of the opinion that in a case in
which sanction sought is refused by the competent authority, while the public servant is in service,
he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for
prosecution under the Prevention of Corruption Act is necessary after the retirement of Public
Servant. Any other view will render the protection illusory. Situation may be different when sanction
is refused by the competent authority after the retirement of the public servant as in that case
sanction is not at all necessary and any exercise in this regard would be action in futility.
9. Now we revert to the decision of this Court in the case of N. Bhargavan Pillai (Supra) relied on by
the respondents. True, it is that in paragraph 5 of the said judgment, it has been observed that "it is
a case where the sanction which was sought for was refused" but from this paragraph, it is not clear
whether it was sought before or after the retirement of the public servant. However, while reading
the judgment as a whole, it is apparent that in this case Charge-sheet against the public servant was
filed after retirement. Further, sanction for his prosecution was sought and refused thereafter. This
would be evident from the following narration of facts in the said judgment:
"3............The managing Director of the Corporation wrote to the Director of Vigilance

(Investigation) along with a copy of Ext.P-I report. The Director of Vigilance
(Investigation) sanctioned registration of a case. On the basis of the direction the
then Deputy Superintendent of Police, Vigilance, Kollam (PW-10) registered a case as
per Ext. P-39. He entrusted the investigation to Inspector of the Kollam Vigilance
Unit- I (PW-11), who conducted the investigation and sent a report to his higher
authorities. In the meantime, the accused retired from service on 28-2-1992. Since he
had retired from service sanction for prosecution became unnecessary. The case was
transferred to the newly established Pathanamthitta Vigilance Unit. PW-12, the
Deputy Superintendent of Police, Vigilance, Pathanamthitta Unit who was put in
charge of this case also verified the records and filed the charge sheet."
(underlining ours) Thus in the case relied on, the sanction for prosecution was not necessary and
therefore its refusal had no bearing on the Trial of the public servant. However, in the present case
sanction was sought and refused while the appellant was in service. Hence, this judgment does not
lend any support to the contention of the respondents and is clearly distinguishable.
10. Otherwise also, the facts of the case are so telling that we are of the opinion that the prosecution
of the appellant shall be an abuse of the process of the Court. According to the First Information
Report, appellant possessed disproportionate assets worth Rs.5.58 lakhs.
However, according to the charge-sheet, the disproportionate assets were to the extent of Rs.1.44
lakhs only. State Government while declining to grant sanction for prosecution observed that assets
possessed by the appellant are not disproportionate to his known source of income.
11. We are further of the opinion that no disputed question being involved, the High Court instead of
making observation as to "whether in present case sanction order is necessary and whether that was

refused by the State Government and what would be the consequence thereof" to be decided by the
trial court, ought to have decided the issues itself.
The facts being not in dispute the High Court erred in not deciding these issues.
12. In the result, we allow this appeal, set aside the order of the High Court and quash the
appellant's prosecution in TR No. 113 of 1999, pending in the Court of Special Judge (Vig.)
Bhubaneshwar.
..........................................................J. (G.S. SINGHVI) ...... ................................................J.

(CHANDRAMAULI KR. PRASAD) NEW DELHI, JULY 4, 2011.

Dr. Subramanian Swamy vs Dr. Manmohan Singh And Anr on 31 January, 2012

Author: G S Singhvi
Bench: G.S. Singhvi, Asok Kumar Ganguly
1
REPORTABLE
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1193 OF 2012
(Arising out of SLP(C) No. 27535 of 2010)
Dr. Subramanian Swamy ... Appellant
versus
Dr. Manmohan Singh and another ... Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under
the Prevention of Corruption Act, 1988 (for short, `the 1988 Act') and whether the authority
competent to sanction prosecution of a public servant for offences under the 1988 Act is required to
take an appropriate decision within the time specified in clause I(15) of the directions contained in
paragraph 58 of the judgment of this Court in Vineet Narain v.

Union of India (1998) 1 SCC 226 and the guidelines issued by the Central Government, Department
of Personnel and Training and the Central Vigilance Commission (CVC) are the question which
require consideration in this appeal.
3. For the last more than three years, the appellant has been vigorously pursuing, in public interest,
the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to
arbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2) who was
appointed as Minister for Communication and Information Technology on 16.5.2007 by the
President on the advice of Dr. Manmohan Singh (respondent No. 1). After collecting information
about the grant of licences, the appellant made detailed representation dated 29.11.2008 to
respondent No. 1 to accord sanction for prosecution of respondent No. 2 for offences under the 1988
Act.
In his representation, the appellant pointed out that respondent No. 2 had allotted new licences in
2G mobile services on `first come, first served' basis to novice telecom companies, viz., Swan
Telecom and Unitech, which was in clear violation of Clause 8 of the Guidelines for United Access
Services Licence issued by the Ministry of Communication and Information Technology vide letter
No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and, thereby, caused loss of over Rs. 50,000
crores to the Government.
The appellant gave details of the violation of Clause 8 and pointed out that the two officers, viz.,
R.J.S. Kushwaha and D. Jha of the Department of Telecom, who had opposed the showing of undue
favour to Swan Telecom, were transferred just before the grant of licences and Bharat Sanchar
Nigam Limited (BSNL) which had never entered into a roaming agreement with any operator, was
forced to enter into such an agreement with Swan Telecom. The appellant further pointed out that
immediately after acquiring 2G spectrum licences, Swan Telecom and Unitech sold their stakes to
foreign companies, i.e., Etisalat, a telecom operator from UAE and Telenor of Norway respectively
and, thereby, made huge profits at the expense of public revenue. He claimed that by 2G spectrum
allocation under respondent No. 2, the Government received only one-sixth of what it would have
received if it had opted for an auction. The appellant pointed out how respondent No. 2 ignored the
recommendations of the Telecom Regulatory Authority of India (TRAI) and gave totally
unwarranted benefits to the two companies and thereby caused loss to the Public Exchequer. Some
of the portions of the appellant's representation are extracted below:
"Clause 8 has been violated as follows: While Anil Dhirubhai Ambani Group (ADAG), the promoters
of Reliance Communications (R Com), had more than 10 per cent stake in Swan Telecom, the figures
were manipulated and showed as 9.99 per cent holding to beat the said Clause. The documents
available disclose that on March 2, 2007, when Swan Telecom applied for United Access Services
Licences, it was owned 100 per cent by Reliance Communications and its associates viz. Reliance
Telecom, and by Tiger Trustees Limited, Swan Infonet Services Private Limited, and Swan Advisory
Services Private Limited (see Annexure I). At one or the other point of time, employees of ADAG
(Himanshu Agarwal, Ashish Karyekar, Paresh Rathod) or its associate companies have been
acquiring the shares of Swan Telecom itself. But still the ADAG manipulated the holdings in Swan to
reduce it to only 9.99 per cent. Ambani has now quietly sold his shares in Swan to Delphi

Investments, a Mauritius based company owned by Ahmed O. Alfi, specializing in automobile spare
parts. In turn, Swan has sold 45% of its shares to UAE's Emirates Telecom Corporation (Etisalat) for
Rs.9000 crores! All this is highly suspicious and not normal business transactions.
Swan company got 60% of the 22 Telecom licenced areas at a throw away price of Rs.1650 crores,
when it was worth Rs.60,000 crores total.
Room has operations in the same circles where the application for Swan Telecom was filed.
Therefore, under Clause 8 of the Guidelines, Swan should not have been allotted spectrum by the
Telecommunication Ministry. But the company did get it on Minister's direction, which is an undue
favour from him (Raja).
There was obviously a quid pro quo which only a CBI enquiry can reveal, after an FIR is registered.
There is no need for a P/E, because the CVC has already done the preliminary enquiry.
Quite surprisingly, the 2G spectrum licences were priced at 2001 levels to benefit these private
players.
That was when there were only 4 million cellphone subscribers; now it is 350 million. Hence 2001
price is not applicable today.
Immediately after acquiring 2G spectrum licences both Swan and Unitech sold their stakes to
foreign companies at a huge profits. While Swan Telecom sold its stakes to UAE telecom operator
Etisalat, Unitech signed a deal with Telenor of Norway for selling its share at huge premiums.
In the process of this 2G spectrum allocation, the government received only one-sixth of what it
would have got had it gone through a fresh auction route.
The total loss to the exchequer of giving away 2G GSM spectrum in this way - including to the
CDMA operators - is over Rs.50,000 crores and is said to be one of the biggest financial scams of all
times in the country.
While approving the 2G licences, Minister Raja turned a blind eye to the fact that these two
companies do not have any infrastructure to launch their services.
Falsely claiming that the Telecom Regulatory Authority of India had approved the first-cum-first
served rule, Raja went ahead with the 2G spectrum allocation to two debutants in the Telecom
sector. In fact earlier TRAI had discussed the spectrum allocation issue with existing services
providers and suggested to the Telecom Ministry that spectrum allocation be made through a
transparent tender and auction process.
This is confirmed by what the TRAI Chairman N. Misra told the CII organized conference on
November 28, 2008 (Annexure 2). But Raja did not bother to listen to the TRAI either and pursued
the process on `first come, first served' basis, benefiting those who had inside information, causing

a loss of Rs.50,000 crores to the Government. His dubious move has been to ensure benefit to
others at the cost of the national exchequer."
The request made in the representation, which was relied upon by the learned Attorney General for
showing that the appellant had himself asked for an investigation, is also extracted below:
"According to an uncontradicted report in CNN-IBN news channel of November 26,

2008, you are said to be "very upset with A. Raja over the spectrum allocation issue".
This confirms that an investigation is necessary, for which I may be given sanction so
that the process of law can be initiated.
I, therefore, writ to demand the grant of sanction to prosecute Mr. A. Raja, Minister
for Telecom of the Union of India for offences under the Prevention of Corruption
Act. The charges in brief are annexed herewith (Annexure 3)."
4. Since the appellant did not receive any response from respondent No.1, he sent letters dated
30.5.2009, 23.10.2009, 31.10.2009, 8.3.2010 and 13.3.2010 and reiterated his request/demand for
grant of sanction to prosecute respondent No.2. In his letter dated 31.10.2009, the appellant
referred to the fact that on being directed by the CVC, the Central Bureau of Investigation (CBI) had
registered a first information report, and claimed that prima facie case is established against
respondent No. 2 for his prosecution under Sections 11 and 13(1)(d) of the 1988 Act. The appellant
also claimed that according to various Supreme Court judgments it was not necessary to carry out a
detailed inquiry, and he had produced sufficient evidence for grant of sanction to initiate criminal
prosecution against respondent No. 2 for the misuse of authority and pecuniary gains from corrupt
practices. In his subsequent letters, the appellant again asserted that the nation had suffered loss of
nearly Rs.65,000 crores due to arbitrary, unreasonable and mala fide action of respondent No.2. In
letter dated 13.3.2010, the appellant referred to the proceedings of the case in which this Court
refused to interfere with the order of the Delhi High Court declaring that the decision of respondent
No.2 to change the cut off date fixed for consideration of applications made for grant of licences was
arbitrary and mala fide.
5. After 1 year and 4-1/2 months of the first letter written by him, Secretary, Department of
Personnel and Training, Ministry of Personnel sent letter dated 19.3.2010 to the appellant
mentioning therein that the CBI had registered a case on 21.10.2009 against unknown officers of the
Department of Telecommunications (DoT), unknown private persons/companies and others and
that the issue of grant of sanction for prosecution would arise only after perusal of the evidence
collected by the investigating agency and other material provided to the Competent Authority and
that it would be premature to consider sanction for prosecution at that stage.
6. On receipt of the aforesaid communication, the appellant filed Civil Writ Petition No. 2442/2010
in the Delhi High Court and prayed for issue of a mandamus to respondent No.1 to pass an order for
grant of sanction for prosecution of respondent No. 2.

The Division Bench of the Delhi High Court referred to the submission of the learned Solicitor
General that when respondent No. 1 has directed investigation by the CBI and the investigation is in
progress, it is not permissible to take a decision on the application of the appellant either to grant or
refuse the sanction because that may affect the investigation, and dismissed the writ petition by
recording the following observations:
"The question that emanates for consideration is whether, at this stage, when the
investigation by the CBI is in progress and this Court had earlier declined to monitor
the same by order dated 25th May, 2010, which has been pressed into service by the
learned Solicitor General of India, it would be appropriate to direct the respondent
no. 1 to take a decision as regards the application submitted by the petitioner seeking
sanction to prosecute.
In our considered opinion, when the matter is being investigated by the CBI, and the
investigation is in progress, it would not be in fitness of things to issue a mandamus
to the first respondent to take a decision on the application of the petitioner."
7. The special leave petition filed by the appellant, out of which this appeal arises, was initially taken
up for consideration along with SLP(C) No. 24873/2010 filed by the Center for Public Interest
Litigation against order dated 25.5.2010 passed by the Division Bench of the High Court in Writ
Petition (Civil) No. 3522/2010 to which reference had been made in the impugned order. During the
course of hearing of the special leave petition filed by the appellant, the learned Solicitor General,
who had appeared on behalf of respondent No. 1, made a statement that he has got the record and is
prepared to place the same before the Court.
However, keeping in view the fact that the record sought to be produced by the learned Solicitor
General may not be readily available to the appellant, the Court passed order dated 18.11.2010
requiring the filing of an affidavit on behalf of respondent No. 1. Thereafter, Shri V. Vidyavati,
Director in the PMO filed affidavit dated 20.11.2010, which reveals the following facts:
"(i) On 1.12.2008, the Prime Minister perused the letter and noted "Please examine
and let me know the facts of this case". This was marked to the Principal Secretary to
the Prime Minister who in turn marked it to the Secretary. The Secretary marked it to
me as Director in the PMO. I prepared a note dated 5.12.2008 factually summarizing
the allegations and seeking approval to obtain the factual position from the sectoral
side (in the PMO dealing with Telecommunications).
(ii) On 11.12.2008, a copy of appellant's letter dated 29.11.2008 was sent to the Secretary,
Department of Telecommunication for submitting a factual report.
The Department of Telecommunication sent reply dated 13.02.2009 incorporating his comments.
(iii) In the meanwhile, letters dated 10.11.2008 and 22.11.2008 were received from Shri Gurudas
Gupta and Shri Suravaran Sudhakar Reddy respectively (copies of these letters have not been

produced before the Court). The same were forwarded to the Department of Telecommunication on
25.03.2009 for sending an appropriate reply to the appellant.
(iv) On 01.06.2009, letter dated 30.05.2009 received from the appellant was placed before
respondent No.1, who recorded the following endorsement "please examine and discuss".
(v) On 19.06.2009, the Director of the concerned Sector in the PMO recorded that the Minister of
Telecommunications and Information Technology has sent D.O. letter dated 18.06.2009 to the
appellant.
When letter dated 23.10.2009 of the appellant was placed before respondent No.1, he recorded an
endorsement on 27.10.2009 "please discuss".
(vi) In response to letter dated 31.10.2009 of the appellant, respondent No.1 made an endorsement
"please examine".
(vii) On 18.11.2009, respondent No.1 stated that Ministry of Law and Justice should examine and
advice. The advice of Ministry of Law and Justice was received on 8.2.2010. Para 7 thereof was as
follows:
"From the perusal of letter dated 23.10.2009 and 31.10.2009, it is noticed that Shri
Swamy wants to rely upon the action and investigation of the CBI to collaborate and
strengthen the said allegation leveled by him against Shri A. Raja, Minister for
Communication and Information Technology. It is specifically mentioned in Para 2 of
the letter dated 31.10.2009 of Shri Swamy that the FIR was registered by the CBI and
"the substance of the allegation made by me in the above cited letters to you are
already under investigation". If it is so, then it may be stated that decision to accord
of sanction of prosecution may be determined only after the perusal of the evidence
(oral or documentary) collected by the investigation agency, i.e., CBI and other
materials to be provided to the competent authority."
(viii) On 05.03.2010, the deponent prepared a note that an appropriate reply be sent
to the appellant in the light of the advice given by the Law Department and final reply
was sent to the appellant after respondent No.1 had approved note dated 17.03.2010."
8. The appellant filed rejoinder affidavit on 22.11.2010 along with a copy of letter dated 18.6.2009
written to him by respondent No. 2 in the context of representation dated 29.11.2008 submitted by
him to respondent No.1.
9. Although, respondent No.2 resigned from the Council of Ministers on 14.11.2010, the appellant
submitted that the issues relating to his right to file a complaint for prosecution of respondent No.2
and grant of sanction within the time specified in the judgment in Vineet Narain's case should be
decided.

10. During the course of hearing, the learned Attorney General filed written submissions. After the
hearing concluded, the learned Attorney General filed supplementary written submissions along
with a compilation of 126 cases in which the sanction for prosecution is awaited for periods ranging
from more than one year to few months
11. Final order in this case was deferred because it was felt that the directions given by this Court in
Vineet Narain's case may require further elaboration in the light of the order passed in Civil Appeal
No. 10660/2010 (arising out of SLP(C) No. 24873/2010) and the fact that decision on the question
of grant of sanction under the 1988 Act and other statutes is pending for a sufficiently long time in
126 cases. However, as the investigation with regard to some of the facets of what has come to be
termed as 2G case is yet to be completed, we have considered it appropriate to pass final order in the
matter.
12. Appellant Dr. Subramanian Swamy argued that the embargo contained in Section 19(1) of the
1988 Act operates only against the taking of cognizance by the Court in respect of offences
punishable under Sections 7, 10, 11, 13 and 15 committed by a public servant, but there is no bar to
the filing of a private complaint for prosecution of the concerned public servant and grant of
sanction by the Competent Authority, and that respondent No. 1 was duty bound to take appropriate
decision on his representation within the time specified in clause I(15) of the directions contained in
paragraph 58 of Vineet Narain's case, more so because he had placed sufficient evidence to show
that respondent No.2 had committed offences under the 1988 Act.
13. The learned Attorney General argued that the question of grant of sanction for prosecution of a
public servant charged with any of the offences enumerated in Section 19(1) arises only at the stage
when the Court decides to take cognizance and any request made prior to that is premature. He
submitted that the embargo contained in Section 19(1) of the Act is applicable to the Court which is
competent to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to
have been committed by a public servant and there is no provision for grant of sanction at a stage
before the competent Court applies its mind to the issue of taking cognizance. Learned Attorney
General relied upon the judgment of the Calcutta High Court in Superintendent and Remembrancer
of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal. 437 as also the judgments of this Court in
R.R. Chari v.
State of Uttar Pradesh 1951 SCR 312, Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy
(1976) 3 SCC 252, Ram Kumar v. State of Haryana (1987) 1 SCC 476, Krishna Pillai v. T.A.
Rajendran, 1990 (Supp) SCC 121, State of West Bengal v.
Mohd. Khalid (1995) 1 SCC 684, State through C.B.I. v. Raj Kumar Jain (1998) 6 SCC 551, K.
Kalimuthu v. State (2005) 4 SCC 512, Centre for Public Interest Litigation v. Union of India (2005)
8 SCC 202 and State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 and argued that letter dated
29.11.2008 sent by the appellant for grant of sanction to prosecute respondent No.2 for the alleged
offences under the 1988 Act was wholly misconceived and respondent No.1 did not commit any
illegality or constitutional impropriety by not entertaining his prayer, more so because the appellant
had himself asked for an investigation into the alleged illegal grant of licences at the behest of

respondent No.2. Learned Attorney General further argued that the appellant does not have the
locus standi to file a complaint for prosecuting respondent No.2 because the CBI is already
investigating the allegations of irregularity committed in the grant of licences for 2G spectrum and
the loss, if any, suffered by the Public Exchequer.
14. We have considered the respective submissions. Section 19 of the 1988 Act reads as under:
"19. Previous sanction necessary for prosecution. - (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, -
(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
(c) in the case of any other person, of the authority competent to remove him from
his office.
(2) Where for any reason whatsoever any doubt arises 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),-
(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. - For the purposes of this section,
(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."
15. The question whether sanction for prosecution of respondent No.2 for the offences allegedly
committed by him under the 1988 Act is required even after he resigned from the Council of
Ministers, though he continues to be a Member of Parliament, need not detain us because the same
has already been answered by the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2 SCC
183 the relevant portions of which are extracted below:
"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 (sic misused) 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 us. 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 (sic misused) 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. One 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 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 is contrary to all canons of construction
and leads to an absurd end 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 rogue's
charter.
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 decision in our opinion, do not lay
down the correct law and cannot be accepted as making a correct interpretation of
Section 6."
16. The same view has been taken in Habibullsa Khan v. State of Orissa (1995) 2 SCC 437 (para 12),
State of H.P. v. M. P. Gupta (2004) 2 SCC 349 (paras 17 and 19), Parkash Singh Badal v.
State of Punjab (2007) 1 SCC 1 and Balakrishnan Ravi Menon v.
Union of India (2007) 1 SCC 45. In Balakrishnan Ravi Menon's case, it was argued that the
observations made in para 25 of the judgment in Antulay's case are obiter. While negating this
submission, the Court observed :
"Hence, it is difficult to accept the contention raised by Mr. U.R. Lalit, the learned
Senior Counsel for the petitioner that the aforesaid finding given by this Court in
Antulay 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 competent to remove the public servant from
his office at the time when the 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. Sub-sections (1) and (2) of
Section 19 are as under:
"19. Previous sanction necessary for prosecution.
--(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,--
(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
(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
(c) in the case of any other person, of the authority competent to remove him from
his office. (2) Where for any reason whatsoever any doubt arises 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."
C lauses ( 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 th e State Government, as the
case may be, sa nction 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 connection 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, be
discharged or dismissed then the question of removing would not arise. Admittedly, when the
alleged offence was committed, the petitioner was appointed by the Central Government. He
demitted his office after completion of five years' tenure. Therefore, at the relevant time when the
charge-sheet was filed, the petitioner was not holding the office of the Chairman of Goa Shipyard
Ltd.

Hence, there is no question of obtaining any previous sanction of the Central Government."
(emphasis supplied)
17. The same view was reiterated in Parkash Singh Badal's case and the argument that even though
some of the accused persons had ceased to be Ministers, they continued to be the Members of the
Legislative Assembly and one of them was a Member of Parliament and as such cognizance could
not be taken against them without prior sanction, was rejected.
18. The next question which requires consideration is whether the appellant has the locus standi to
file a complaint for prosecution of respondent No.2 for the offences allegedly committed by him
under the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure,
1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is
alleged to have committed an offence.
Therefore, the argument of the learned Attorney General that the appellant cannot file a complaint
for prosecuting respondent No.2 merits rejection. A similar argument was negatived by the
Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500. The facts of that
case show that on a private complaint filed by the respondent, the Special Judge took cognizance of
the offences allegedly committed by the appellant.
The latter objected to the jurisdiction of the Special Judge on two counts, including the one that the
Court set up under Section 6 of the Criminal Law Amendment Act, 1952 (for short, `the 1952 Act')
was not competent to take cognizance of any of the offences enumerated in Section 6(1)(a) and (b)
upon a private complaint.
His objections were rejected by the Special Judge. The revision filed by the appellant was heard by
the Division Bench of the High Court which ruled that a Special Judge is competent and is entitled
to take cognizance of offences under Section 6(1)(a) and
(b) on a private complaint of the facts constituting the offence.
The High Court was of the opinion that a prior investigation under Section 5A of the Prevention of
Corruption Act, 1947 (for short, `the 1947 Act') by a police officer of the designated rank is not sine
qua non for taking cognizance of an offence under Section 8(1) of the 1952 Act. Before the Supreme
Court, the argument against the locus standi of the respondent was reiterated and it was submitted
that Section 5A of the 1947 Act is mandatory and an investigation by the designated officer is a
condition precedent to the taking of cognizance by the Special Judge of an offence or offences
committed by a public servant. While dealing with the issue relating to maintainability of a private
complaint, the Constitution Bench observed:
"It is a well recognised principle of criminal jurisprudence that anyone can set or put
the criminal law into motion except where the statute enacting or creating an offence
indicates to the contrary. The scheme of the Code of Criminal Procedure envisages

two parallel and independent agencies for taking criminal offences to court. Even for
the most serious offence of murder, it was not disputed that a private complaint can,
not only be filed but can be entertained and proceeded with according to law. Locus
standi of the complainant is a concept foreign to criminal jurisprudence save and
except that where the statute creating an offence provides for the eligibility of the
complainant, by necessary implication the general principle gets excluded by such
statutory provision. Numerous statutory provisions, can be referred to in support of
this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of
Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv)
Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign
Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii)
Section 77 of the Electricity Supply Act. This list is only illustrative and not
exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to
approach the Magistrate with a complaint, it does not prescribe any qualification the
complainant is required to fulfil to be eligible to file a complaint. But where an
eligibility criterion for a complainant is contemplated specific provisions have been
made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions
clearly indicate that in the absence of any such statutory provision, a locus standi of a
complainant is a concept foreign to criminal jurisprudence. In other words, the
principle that anyone can set or put the criminal law in motion remains intact unless
contra-indicated by a statutory provision. This general principle of nearly universal
application is founded on a policy that an offence i.e. an act or omission made
punishable by any law for the time being in force is not merely an offence committed
relation to the person who suffers harm but is also an offence against society. The
society for its orderly and peaceful development is interested in the punishment of
the offender. Therefore, prosecution for serious offences is undertaken in the name of
the State representing the people which would exclude any element of private
vendetta or vengeance. If such is the public policy underlying penal statutes, who
brings an act or omission made punishable by law to the notice of the authority
competent to deal with it, is immaterial and irrelevant unless the statute indicates to
the contrary. Punishment of the offender in the interest of the society being one of
the objects behind penal statutes enacted for larger good of the society, right to
initiate proceedings cannot be whittled down, circumscribed or fettered by putting it
into a strait- jacket formula of locus standi unknown to criminal jurisprudence, save
and except specific statutory exception. To hold that such an exception exists that a
private complaint for offences of corruption committed by public servant is not
maintainable, the court would require an unambiguous statutory provision and a
tangled web of argument for drawing a far fetched implication, cannot be a substitute
for an express statutory provision."
(emphasis supplied) The Constitution Bench then considered whether the Special
Judge can take cognizance only on the basis of a police report and answered the same
in negative in the following words:

"In the matter of initiation of proceeding before a Special Judge under Section 8(1), the Legislature
while conferring power to take cognizance had three opportunities to unambiguously state its mind
whether the cognizance can be taken on a private complaint or not. The first one was an opportunity
to provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of an
offence on a police report submitted to it by an investigating officer conducting investigation as
contemplated by Section 5-
A. While providing for investigation by designated police officers of superior rank, the Legislature
did not fetter the power of Special Judge to take cognizance in a manner otherwise than on police
report. The second opportunity was when by Section 8(3) a status of a deemed public prosecutor
was conferred on a private complainant if he chooses to conduct the prosecution.
The Legislature being aware of a provision like the one contained in Section 225 of the CrPC, could
have as well provided that in every trial before a Special Judge the prosecution shall be conducted by
a Public Prosecutor, though that itself would not have been decisive of the matter. And the third
opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases
to be followed by Special Judge did not exclude by a specific provision that the only procedure which
the Special Judge can follow is the one prescribed for trial of warrant cases on a police report. The
disinclination of the Legislature to so provide points to the contrary and no canon of construction
permits the court to go in search of a hidden or implied limitation on the power of the Special Judge
to take cognizance unfettered by such requirement of its being done on a police report alone.
In our opinion, it is no answer to this fairly well-
established legal position that for the last 32 years no case has come to the notice of the court in
which cognizance was taken by a Special Judge on a private complaint for offences punishable under
the 1947 Act."
(emphasis supplied) The Court then referred to Section 5A of the 1947 Act, the provisions of the
1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150, State
of M.P. v.
Mubarak Ali 1959 Supp. (2) SCR 201, Union of India v. Mahesh Chandra AIR 1957 M.B. 43 and
held:
"Having carefully examined these judgments in the light of the submissions made,
the only conclusion that unquestionably emerges is that Section 5-A is a safeguard
against investigation of offences committed by public servants, by petty or lower rank
police officer. It has nothing to do directly or indirectly with the mode and method of
taking cognizance of offences by the Court of Special Judge. It also follows as a
necessary corollary that provision of Section 5-A is not a condition precedent to
initiation of proceedings before the Special Judge who acquires power under Section
8(1) to take co gnizance of offences enumerated in Section 6(1)( a ) a nd ( b ), with
this limitation alone that it shall not be upon commitment to him by the Magistrate.

Once the contention on behalf of the appellant that investigation under Section 5-A is
a condition precedent to the initiation of proceedings before a Special Judge and
therefore cognizance of an offence cannot be taken except upon a police report, does
not commend to us and has no foundation in law, it is unnecessary to refer to the
long line of decisions co mmencing from Ta ylor v. Ta ylor ; N azir Ahmad v.
Kin
g-Emperor and ending with C
hettiam Veettil
A
mmad v. Ta
luk Land Board , laying down hitherto
uncontroverted legal principle that where a statute requires to do a certain thing in a

certain way, the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden.
Once Section 5-A is out of the way in the matter of taking cognizance of offences committed by
public servants by a Special Judge, the power of the Special Judge to take cognizance of such
offences conferred by Section 8(1) with only one limitation, in any one of the known methods of
taking cognizance of offences by courts of original jurisdiction remains undented. One such
statutorily recognised well-known method of taking cognizance of offences by a court competent to
take cognizance is upon receiving a complaint of facts which constitutes the offence. And Section
8(1) says that the Special Judge has the power to take cognizance of offences enumerated in Section
6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon
commitment. It therefore, follows that the Special Judge can take cognizance of offences committed
by public servants upon receiving a complaint of facts constituting such offences.
It was, however, submitted that even if it be held that the Special Judge is entitled to entertain a
private complaint, no further steps can be taken by him without directing an investigation under
Section 5-A so that the safeguard of Section 5-A is not whittled down.
This is the selfsame argument under a different apparel. Accepting such a submission would
tantamount to saying that on receipt of the complaint the Special Judge must direct an investigation
under Section 5-A, There is no warrant for such an approach.
Astounding as it appeared to us, in all solemnity it was submitted that investigation of an offence by
a superior police officer affords a more solid safeguard compared to a court. Myopic as this is, it
would topsy turvy the fundamental belief that to a person accused of an offence there is no better
safeguard than a court. And this is constitutionally epitomised in Article 22 that upon arrest by
police, the arrested person must be produced before the nearest Magistrate within twenty-

four hours of the arrest. Further, numerous provisions of the Code of Criminal Procedure such as
Section 161, Section 164, and Section 25 of the Indian Evidence Act would show the Legislature's
hesitation in placing confidence on police officers away from court's gaze.
And the very fact that power is conferred on a Presidency Magistrate or Magistrate of the first class
to permit police officers of lower rank to investigate these offences would speak for the mind of the
Legislature that the court is a more reliable safeguard than even superior police officers."
(emphasis supplied)
19. In view of the aforesaid judgment of the Constitution Bench, it must be held that the appellant
has the right to file a complaint for prosecution of respondent No.2 in respect of the offences
allegedly committed by him under the 1988 Act.
20. The argument of the learned Attorney General that the question of granting sanction for
prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of
taking cognizance and not before that is neither supported by the plain language of the section nor
the judicial precedents relied upon by him. Though, the term `cognizance' has not been defined
either in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation from
various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of
law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is
any basis for initiating proceedings and determination of the cause or matter judicially". In R. R.
Chari v. State of U.P. (1951) SCR 312, the three Judge Bench approved the following observations
made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Abni Kumar Banerjee (supra):
"What is taking cognizance has not been defined in the Criminal Procedure Code and
I have no desire to attempt to define it. It seems to me clear however that before it
can be said that any magistrate has taken cognizance of any offence under section
190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the
contents of the petition but he must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent provisions of this Chapter - proceeding
under section 200 and thereafter sending it for inquiry and report under section 202.
When the magistrate applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking action of some other kind, e.g.
ordering investigation under section 156(3), or issuing a search warrant for the
purpose of the investigation, he cannot be said to have taken cognizance of the
offence."
21. In Mohd. Khalid's case, the Court referred to Section 190 of the CrPC and observed :
"In its broad and literal sense, it means taking notice of an offence. This would
include the intention of initiating judicial proceedings against the offender in respect
of that offence or taking steps to see whether there is any basis for initiating judicial

proceedings or for other purposes. The word `cognizance' indicates the point when a
Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different
thing from initiation of proceedings; rather it is the condition precedent to the
initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases
and not of persons."
22. In Pastor P. Raju's case, this Court referred to the provisions of Chapter XIV and Sections 190
and 196 (1-A) of the CrPC and observed :
"There is no bar against registration of a criminal case or investigation by the police

agency or submission of a report by the police on completion of investigation, as
contemplated by Section 173 CrPC. If a criminal case is registered, investigation of
the offence is done and the police submits a report as a result of such investigation
before a Magistrate without the previous sanction of the Central Government or of
the State Government or of the District Magistrate, there will be no violation of
Section 196(1-A) CrPC and no illegality of any kind would be committed."
The Court then referred to some of the precedents including the judgment in Mohd. Khalid's case
and observed :
"It is necessary to mention here that taking cognizance of an offence is not the same
thing as issuance of process. Cognizance is taken at the initial stage when the
Magistrate applies his judicial mind to the facts mentioned in a complaint or to a
police report or upon information received from any other person that an offence has
been committed. The issuance of process is at a subsequent stage when after
considering the material placed before it the court decides to proceed against the
offenders against whom a prima facie case is made out."
23. In Kalimuthu's case, the only question considered by this Court was whether in the absence of
requisite sanction under Section 197 CrPC, the Special Judge for CBI cases, Chennai did not have
the jurisdiction to take cognizance of the alleged offences. The High Court had taken the view that
Section 197 was not applicable to the appellant's case. Affirming the view taken by the High Court,
this Court observed :
"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. Further, in cases where offences under the Act are concerned, the effect of
Section 197, dealing with the question of prejudice has also to be noted."
24. In Raj Kumar Jain's case, this Court considered the question whether the CBI was required to
obtain sanction from the prosecuting authority before approaching the Court for accepting the
report under Section 173(2) of the CrPC. This question was considered in the backdrop of the fact

that the CBI, which had investigated the case registered against the respondent under Section 5(2)
read with Section 5(1)(e) of the 1947 Act found that the allegation made against the respondent
could not be substantiated. The Special Judge declined to accept the report submitted under Section
173(2) CrPC by observing that the CBI was required to place materials collected during investigation
before the sanctioning authority and it was for the concerned authority to grant or refuse sanction.
The Special Judge opined that only after the decision of the sanctioning authority, the CBI could
submit the report under Section 173(2). The High Court dismissed the petition filed by the CBI and
confirmed the order of the Special Judge. This Court referred to Section 6(1) of the 1947 Act and
observed:
"From a plain reading of the above section it is evidently clear that a court cannot
take cognizance of the offences mentioned therein without sanction of the
appropriate authority. In enacting the above section, the legislature thought of
providing a reasonable protection to public servants in the discharge of their official
functions so that they may perform their duties and obligations undeterred by
vexatious and unnecessary prosecutions. Viewed in that context, the CBI was under
no obligation to place the materials collected during investigation before the
sanctioning authority, when they found that no case was made out against the
respondent. To put it differently, if the CBI had found on investigation that a prima
facie case was made out against the respondent to place him on trial and accordingly
prepared a charge-sheet (challan) against him, then only the question of obtaining
sanction of the authority under Section 6(1) of the Act would have arisen for without
that the Court would not be competent to take cognizance of the charge-sheet. It
must, therefore, be said that both the Special Judge and the High Court were patently
wrong in observing that the CBI was required to obtain sanction from the prosecuting
authority before approaching the Court for accepting the report under Section 173(2)
CrPC."
25. In our view, the decisions relied upon by the learned Attorney General do not have any bearing
on the moot question whether respondent No.1, being the Competent Authority to sanction
prosecution of respondent No.2, was required to take appropriate decision in the light of the
direction contained in Vineet Narain's case.
26. Before proceeding further, we would like to add that at the time of taking cognizance of the
offence, the Court is required to consider the averments made in the complaint or the charge sheet
filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage
and come to the conclusion that no prima facie case is made out for proceeding further in the
matter. However, before issuing the process, it that it is open to the Court to record the evidence and
on consideration of the averments made in the complaint and the evidence thus adduced, find out
whether an offence has been made out. On finding that such an offence has been made out the Court
may direct the issue of process to the respondent and take further steps in the matter.
If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the
charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence

for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that
stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has
been made out.
27. We may also observe that grant or refusal of sanction is not a quasi judicial function and the
person for whose prosecution the sanction is sought is not required to be heard by the Competent
Authority before it takes a decision in the matter. What is required to be seen by the Competent
Authority is whether the facts placed before it which, in a given case, may include the material
collected by the complainant or the investigating agency prima facie disclose commission of an
offence by a public servant.
If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution
of the public servant, then it is required to grant sanction. If the satisfaction of the Competent
Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the
complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such
decision, then he can avail appropriate legal remedy.
28. In Vineet Narain's case, the Court entertained the writ petitions filed in public interest for
ensuring investigation into what came to be known as `Hawala case'. The writ petition remained
pending for almost four years. During that period, several interim orders were passed which are
reported as Vineet Narain v. Union of India 1996 (1) SCALE (SP) 42, Vineet Narain v.
Union of India (1996) 2 SCC 199, Vineet Narain v. Union of India (1997) 4 SCC 778 and Vineet
Narain v. Union of India (1997) 5 SCALE 254. The final order was passed in Vineet Narain v. Union
of India (1998) 1 SCC 226. In (1996) 2 SCC 199, the Court referred to the allegations made in the
writ petition that Government agencies like the CBI and the revenue authorities have failed to
perform their duties and legal obligations inasmuch as they did not investigate into the matters
arising out of seizure of the so-called "Jain Diaries" in certain raids conducted by the CBI. The Court
took note of the allegation that the arrest of some terrorists led to the discovery of financial support
to them by clandestine and illegal means and a nexus between several important politicians,
bureaucrats and criminals, who were recipients of money from unlawful sources, and proceeded to
observe:
"The facts and circumstances of the present case do indicate that it is of utmost public
importance that this matter is examined thoroughly by this Court to ensure that all
government agencies, entrusted with the duty to discharge their functions and
obligations in accordance with law, do so, bearing in mind constantly the concept of
equality enshrined in the Constitution and the basic tenet of rule of law: "Be you ever
so high, the law is above you." Investigation into every accusation made against each
and every person on a reasonable basis, irrespective of the position and status of that
person, must be conducted and completed expeditiously. This is imperative to retain
public confidence in the impartial working of the government agencies."

29. After examining various facets of the matter in detail, the three Judge Bench in its final order
reported in (1998) 1 SCC 226 observed :
"These principles of public life are of general application in every democracy and one
is expected to bear them in mind while scrutinising the conduct of every holder of a
public office. It is trite that the holders of public offices are entrusted with certain
powers to be exercised in public interest alone and, therefore, the office is held by
them in trust for the people. Any deviation from the path of rectitude by any of them
amounts to a breach of trust and must be severely dealt with instead of being pushed
under the carpet. If the conduct amounts to an offence, it must be promptly
investigated and the offender against whom a prima facie case is made out should be
prosecuted expeditiously so that the majesty of law is upheld and the rule of law
vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to
guard against erosion of the rule of law. The adverse impact of lack of probity in
public life leading to a high degree of corruption is manifold. It also has adverse effect
on foreign investment and funding from the International Monetary Fund and the
World Bank who have warned that future aid to underdeveloped countries may be
subject to the requisite steps being taken to eradicate corruption, which prevents
international aid from reaching those for whom it is meant. Increasing corruption
has led to investigative journalism which is of value to a free society. The need to
highlight corruption in public life through the medium of public interest litigation
invoking judicial review may be frequent in India but is not unknown in other
countries: R. v. Secy. of State for Foreign and Commonwealth Affairs."
In paragraph 58 of the judgment, the Court gave several directions in relation to the CBI, the CVC
and the Enforcement Directorate. In para 58 (I)(15), the Court gave the following direction:
"Time-limit of three months for grant of sanction for prosecution must be strictly
adhered to. However, additional time of one month may be allowed where
consultation is required with the Attorney General (AG) or any other law officer in
the AG's office."
30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit
Singh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.
1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225, framed
guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses
of the guidelines are extracted below:
"2(i) Grant of sanction is an administrative act. The purpose is to protect the public
servant from harassment by frivolous or vexatious prosecution and not to shield the
corrupt. The question of giving opportunity to the public servant at that stage does
not arise. The sanctioning authority has only to see whether the facts would
prima-facie constitutes the offence.

(ii) The competent authority cannot embark upon an inquiry to judge the truth of the
allegations on the basis of representation which may be filed by the accused person
before the Sanctioning Authority, by asking the I.O. to offer his comments or to
further investigate the matter in the light of representation made by the accused
person or by otherwise holding a parallel investigation/enquiry by calling for the
record/report of his department.
(vii) However, if in any case, the Sanctioning Authority after consideration of the
entire material placed before it, entertains any doubt on any point the competent
authority may specify the doubt with sufficient particulars and may request the
Authority who has sought sanction to clear the doubt. But that would be only to clear
the doubt in order that the authority may apply its mind proper, and not for the
purpose of considering the representations of the accused which may be filed while
the matter is pending sanction.
(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is
pending before it for sanction, it will almost be impossible for the Sanctioning
Authority to adhere to the time limit allowed by the Supreme Court in Vineet
Narain's case."
31. The aforementioned guidelines are in conformity with the law laid down by this Court that while
considering the issue regarding grant or refusal of sanction, the only thing which the Competent
Authority is required to see is whether the material placed by the complainant or the investigating
agency prima facie discloses commission of an offence. The Competent Authority cannot undertake
a detailed inquiry to decide whether or not the allegations made against the public servant are true.
32. In the light of the above discussion, we shall now consider whether the High Court was justified
in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to
observe that the High Court had proceeded under a wholly erroneous assumption that respondent
No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of
licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by
respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an
inquiry under Section 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of
the report to the Director, CBI for making an investigation into the matter to establish the criminal
conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book
all the wrongdoers. Thereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009
against unknown officials of the DoT, unknown private persons/companies and others for offences
under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the 1988 Act. For the next about
one year, the matter remained dormant and the CBI took steps for vigorous investigation only when
this Court intervened in the matter. The material placed on record does not show that the CBI had
registered a case or started investigation at the instance of respondent No.1.
33. On his part, the appellant had submitted representation to respondent No. 1 almost one year
prior to the registration of the first information report by the CBI and highlighted the grave

irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees
to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1
at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the
matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to
examine and apprise him with the facts of the case.
Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer
sent the appellant's representation to the DoT which was headed by none other than respondent
No.2 against whom the appellant had made serious allegations of irregularities in the grant of
licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent
letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the
PMO then referred the matter to the Ministry of Law and Justice for advice.
It is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent
No.1 highlighting the seriousness of the allegations made in his first representation and the fact that
he had already supplied the facts and documents which could be made basis for grant of sanction to
prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed
inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the
matter pending and then took the shelter of the fact that the CBI had registered the case and the
investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice,
were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant
and the judgments of this Court including the directions contained in paragraph 58(I) of the
judgment in Vineet Narain's case as also the guidelines framed by the CVC so as to enable him to
take appropriate decision in the matter. By the very nature of the office held by him, respondent No.
1 is not expected to personally look into the minute details of each and every case placed before him
and has to depend on his advisers and other officers. Unfortunately, those who were expected to give
proper advice to respondent No. 1 and place full facts and legal position before him failed to do so.
We have no doubt that if respondent No.1 had been apprised of the true factual and legal position
regarding the representation made by the appellant, he would have surely taken appropriate
decision and would not have allowed the matter to linger for a period of more than one year.
34. In the result, the appeal is allowed. The impugned order is set aside. It is declared that the
appellant had the right to file a complaint for prosecuting respondent No.2. However, keeping in
view the fact that the Court of Special Judge, CBI has already taken cognizance of the offences
allegedly committed by respondent No.2 under the 1988 Act, we do not consider it necessary to give
any other direction in the matter. At the same time, we deem it proper to observe that in future
every Competent Authority shall take appropriate action on the representation made by a citizen for
sanction of the prosecution of a public servant strictly in accordance with the direction contained in
Vineet Narain v. Union of India (1998) 1 SCC 226 and the guidelines framed by the CVC.
..........................................J.
[G.S. Singhvi] ...........................................J.

[Asok Kumar Ganguly] New Delhi, January 31, 2012.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL

APPEAL NO.1193 OF 2012 (Arising out of SLP (C) No.27535/2010) Dr. Subramanian Swamy
....Appellant(s)
- Versus -
Dr. Manmohan Singh & another ....Respondent(s) J U D G M E N T GANGULY, J.
1. After going through the judgment rendered by my learned brother G.S. Singhvi, J., I am in
agreement with the various conclusions reached by His Lordship. However, I have added my own
views on certain important facts of the questions raised in this case.
2. Brother Singhvi, J., has come to a finding that having regard to the very nature of the office held
by respondent No.1, it may not be expected of respondent No.1 to personally look into the minute
details of each and every matter and the respondent No.1, having regard to the burden of his very
onerous office, has to depend on the officers advising him. At the same time it may be noted that in
the course of submission, the appellant, who argued in person, did not ever allege any malafide or
lack of good faith against the respondent No.1. The delay which had taken place in the office of the
respondent No.1 is unfortunate but it has not even been alleged by the appellant that there was any
deliberate action on the part of the respondent No.1 in causing the delay. The position of respondent
No.1 in our democratic polity seems to have been summed up in the words of Shakespeare "Uneasy
lies the head that wears a crown" (Henry, The Fourth, Part 2 Act 3, scene 1).
3. I also agree with the conclusions of bother Singhvi, J., that the appellant has the locus to file the
complaint for prosecution of the respondent No.2 in respect of the offences alleged to have been
committed by him under the 1988 Act.
Therefore, I agree with the finding of brother Singhvi, J., that the argument of the learned Attorney
General to the contrary cannot be accepted. Apart from that the learned Attorney General in the
course of his submission proceeded on the basis that the question of sanction has to be considered
with reference to Section 19 of the Prevention of Corruption Act (hereinafter "the P.C. Act") or with
reference to Section 197 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), and the
scheme of both the sections being similar (Vide paragraph 3 of the supplementary written
submission filed by the learned Attorney General). In fact, the entire submission of the learned
Attorney General is structured on the aforesaid assumption. I fail to appreciate the aforesaid
argument as the same is contrary to the scheme of Section 19 of the P.C. Act and also Section 197 of
the Code. In Kalicharan Mahapatra vs. State of Orissa reported in (1998) 6 SCC 411, this Court
compared Section 19 of P.C. Act with Section 197 of the Code. After considering several decisions on
the point and also considering Section 6 of the old P.C. Act, 1947 which is almost identical with
Section 19 of the P.C. Act, 1988 and also noting Law Commission's Report, this Court in paragraph
13 of Kalicharan (supra) came to the following conclusions:

"13. The sanction contemplated in Section 197 of the Code concerns a public servant who "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", whereas the offences contemplated in the PC Act are those which
cannot be treated as acts either directly or even purportedly done in the discharge of his official
duties. Parliament must have desired to maintain the distinction and hence the wording in the
corresponding provision in the former PC Act was materially imported in the new PC Act, 1988
without any change in spite of the change made in Section 197 of the Code."
4. The above passage in Kalicharan (supra) has been quoted with approval subsequently by this
Court in Lalu Prasad vs. State of Bihar reported in 2007 (1) SCC 49 at paragraph 9, page 54. In
paragraph 10, (page 54 of the report) this Court held in Lalu Prasad (supra) that "Section 197 of the
Code and Section 19 of the Act operate in conceptually different fields".
5. In view of such consistent view by this Court the basic submission of the learned Attorney General
to the contrary is, with respect, untenable.
6. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of the
learned Attorney General that question for granting sanction for prosecution of a public servant
charged with offences under the 1988 Act arises only at the stage of cognizance is also not
acceptable.
7. In formulating this submission, the learned Attorney General substantially advanced two
contentions. The first contention is that an order granting sanction is not required to be filed along
with a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaid
submission is contrary to the settled law laid down by this Court in various judgments.
Recently a unanimous three-judge Bench decision of this Court in the case of State of Uttar Pradesh
vs. Paras Nath Singh, [(2009) 6 SCC 372], speaking through Justice Pasayat and construing the
requirement of sanction, held that without sanction:
"......The 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 been committed
during discharge of his official duty."
(Para 6, page 375 of the report)
8. The other contention of the learned Attorney General is that in taking cognizance under the P.C.
Act the Court is guided by the provisions under Section 190 of the Code and in support of that
contention the learned Attorney General relied on several judgments. However, the aforesaid
submissions were made without noticing the judgment of this Court in the case of Dilawar Singh vs.
Parvinder Singh alias Iqbal Singh and Another (2005) 12 SCC 709. Dealing with Section 19 of P.C.

Act and Section 190 of the Code, this Court held in paragraph 8 at page 713 of the report as follows:
"......The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has
been enacted to consolidate and amend the law relating to the prevention of corruption and for
matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non
derogant would apply which means that if a special provision has been made on a certain matter,
that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P.,
State of Bihar v. Dr. Yogendra Singh and Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the provisions of Section 19 of
the Act will have an overriding effect over the general provisions contained in Section
190......"
9. Therefore, concurring with brother Singhvi, J., I am unable to uphold the submission of the
learned Attorney General.
10. As I am of the humble opinion that the questions raised and argued in this case are of
considerable constitutional and legal importance, I wish to add my own reasoning on the same.
11. Today, corruption in our country not only poses a grave danger to the concept of constitutional
governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The
magnitude of corruption in our public life is incompatible with the concept of a socialist, secular
democratic republic. It cannot be disputed that where corruption begins all rights end.
Corruption devalues human rights, chokes development and undermines justice, liberty, equality,
fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that
any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the
fight against corruption. That is to say in a situation where two constructions are eminently
reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks
to perpetuate it.
12. Time and again this Court has expressed its dismay and shock at the ever growing tentacles of
corruption in our society but even then situations have not improved much. [See Sanjiv Kumar v.
State of Haryana & ors., (2005) 5 SCC 517; State of A.P.
v. V. Vasudeva Rao, (2004) 9 SCC 319; Shobha Suresh Jumani v. Appellate Tribunal Forfeited
Property & another, (2001) 5 SCC 755; State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88; J.
Jayalalitha v. Union of India & another, (1999) 5 SCC 138; Major S.K. Kale v. State of Maharashtra,
(1977) 2 SCC 394.]
13. Learned Attorney General in the course of his submission fairly admitted before us that out of
total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in
more than 1/3rd cases of request for prosecution in corruption cases against public servants,

sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues
as well as some questions relating to interpretation of such sanctioning provision and also the role
that an independent judiciary has to play in maintaining rule of law and common man's faith in the
justice delivering system.
14. Both rule of law and equality before law are cardinal questions in our Constitutional Laws as also
in International law and in this context the role of the judiciary is very vital. In his famous treatise
on Administrative Law, Professor Wade while elaborating the concept of rule of law referred to the
opinion of Lord Griffith's which runs as follows:
"the judiciary accept a responsibility for the maintenance of the rule of law that embraces a
willingness to oversee executive action and to refuse to countenance behaviour that threatens either
basic human rights or the rule of law."
[See R. v. Horseferry Road Magistrates' Court ex p. Bennett {1994) 1 AC 42 at 62]
15. I am in respectful agreement with the aforesaid principle.
16. In this connection we might remind ourselves that courts while maintaining rule of law must
structure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lord
made a comparison between "the golden and straight metwand of law" as opposed to "the uncertain
and crooked cord of discretion".
17. The right of private citizen to file a complaint against a corrupt public servant must be equated
with his right to access the Court in order to set the criminal law in motion against a corrupt public
official. This right of access, a Constitutional right should not be burdened with unreasonable
fetters. When a private citizen approaches a court of law against a corrupt public servant who is
highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also
the question of bringing orderliness in society and maintaining equal balance in the rule of law. It
was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar
and Others, (1987) 1 SCC 288 at page 315:
"......It is now settled law that a criminal proceeding is not a proceeding for vindication of a private
grievance but it is a proceeding initiated for the purpose of punishment to the offender in the
interest of the society. It is for maintaining stability and orderliness in the society that certain acts
are constituted offences and the right is given to any citizen to set the machinery of the criminal law
in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay
v. R.S. Nayak this Court pointed out that (SCC p. 509, para 6) "punishment of the offender in the
interest of the society being one of the objects behind penal statutes enacted for larger good of the
society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it
into a strait jacket formula of locus standi......"
18. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars
a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10,

11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has
accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from
approaching Court against corrupt public servants. These protections are not available to other
citizens. Public servants are treated as a special class of persons enjoying the said protection so that
they can perform their duties without fear and favour and without threats of malicious prosecution.
However, the said protection against malicious prosecution which was extended in public interest
cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality
provision of Article 14 are analogous to provisions of protective discrimination and these protections
must be construed very narrowly. These procedural provisions relating to sanction must be
construed in such a manner as to advance the causes of honesty and justice and good governance as
opposed to escalation of corruption. Therefore, in every case where an application is made to an
appropriate authority for grant of prosecution in connection with an offence under P.C. Act it is the
bounden duty of such authority to apply its mind urgently to the situation and decide the issue
without being influenced by any extraneous consideration. In doing so, the authority must make a
conscious effort to ensure the rule of law and cause of justice is advanced. In considering the
question of granting or refusing such sanction, the authority is answerable to law and law alone.
Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a
situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the
purpose of a speedy trial with the requirement to bring the culprit to book.
Therefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to
grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at
stake is the public confidence in the maintenance of rule of law which is fundamental in the
administration of justice.
Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public
mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public
official as a quid pro quo for services rendered by the public official in the past or may be in the
future and the sanctioning authority and the corrupt officials were or are partners in the same
misdeeds. I may hasten to add that this may not be factual position in this but the general
demoralizing effect of such a popular perception is profound and pernicious. By causing delay in
considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and
determination of the allegations against corrupt official and thus the legitimacy of the judicial
institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get
justice by setting the criminal law in motion and thereby frustrates his right to access judicial
remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the
P.C.
Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning
authority with unbridled power which has often resulted in protecting the guilty and perpetuating
criminality and injustice in society.
19. There are instances where as a result of delayed grant of sanction prosecutions under the P.C.
Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others,

(2002) 1 SCC 149, wherein this Court quashed the prosecution as the sanctioning authority granted
sanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994)
Supp.3 SCC 735, this Court quashed prosecution in a case where grant of sanction was unduly
delayed.
There are several such cases. The aforesaid instances show a blatant subversion of the rule of law.
Thus, in many cases public servants whose sanction proposals are pending before authorities for
long periods of time are being allowed to escape criminal prosecution.
20. Article 14 must be construed as a guarantee against uncanalized and arbitrary power.
Therefore, the absence of any time limit in granting sanction in Section 19 of the P.C. Act is not in
consonance with the requirement of the due process of law which has been read into our
Constitution by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India
and Another, (1978) 1 SCC 248.
21. I may not be understood to have expressed any doubt about the constitutional validity of Section
19 of the P.C. Act, but in my judgment the power under Section 19 of the P.C. Act must be reasonably
exercised. In my judgment the Parliament and the appropriate authority must consider
restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason,
justice and fair play.
22. In my view, the Parliament should consider the Constitutional imperative of Article 14
enshrining the rule of law wherein `due process of law' has been read into by introducing a time
limit in Section 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may,
in my opinion, consider the following guidelines:
a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction
for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a
period of three months of the receipt of the proposal by the concerned authority.
b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate
General of the State, as the case may be, and the same is not possible within the three months
mentioned in clause (a) above, an extension of one month period may be allowed, but the request
for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of
the said request will be sent to the prosecuting agency or the private complainant to intimate them
about the extension of the time limit.
c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to
have been granted to the proposal for prosecution, and the prosecuting agency or the private
complainant will proceed to file the chargesheet/complaint in the court to commence prosecution
within 15 days of the expiry of the aforementioned time limit.

23. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow the
appeal and the judgment of the High Court is set aside. No costs.
.......................J.
(ASOK KUMAR GANGULY) New Delhi January 31, 2012 *********

Jaitdan vs State Of Rajasthan And Ors. on 18 August, 2006
Rajasthan High Court

Equivalent citations: RLW 2006 (4) Raj 3180
Author: R Balia
Bench: R Balia, G K Vyas
JUDGMENT Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This appeal is directed against the judgment of learned Single Judge dated 26.4.2006 dismissing
the appellant's writ petition seeking mandamus for staying the further proceedings in the
departmental enquiry regarding the charges levelled in the memo of charge-sheet dated 12.1.06.
3. Learned Single Judge has rejected the writ petition solely on the ground that the petitioner was
not able to explain as to what happened in the criminal trial pending against him and it is not shown
by the learned Counsel as to whether compromise has been arrived at or not and as to whether the
evidence of these witnesses has been recorded or not for which the petitioner was granted time by
the court.
4. In order to understand the controversy we take notice of the facts that a complaint was lodged by
daughter-in-law of the petitioner under Section 498 A IPC alleging that he has demanded dowry and
he harassed her for demand of dowry. In respect to the said complaint the matter was investigated
and the charge-sheet was filed in the trial Court.
5. In the memo of charge sheet dated 12.1.06 the following charges were levelled:
vki Jh tSrnku dkfu- 306 fjtoZ iqfyl ykbZu tks/kiqj kgj esa inLFkkfir gS vki ij fuEu vkjksi gS% ;g fd
vkids fo:) vijk/k la[;k 130 fnukad 36-6-03 /kkjk 498 ,] 406]323 Hkknl Fkkuk xqMk ,Unyk ftyk ikyh
esa iaftc) gqvk ftlesa okn vuqla/kku vkids fo:) /kkjk 498,] 406 Hkknl dk vijk/k izekf.kr ik;k tkus ij
pktZkhV U;k;ky; esa izLrqr dh xbZA ;g fd vki }kjk iqfyl foHkkx esa gksrs gq, dkuwu dh tkudkjh gksrs
gq, Hkh vkijkf/kd d`R; fd;k tks jktLFkku flfoy lsok vkpj.k fu;e 1971 ds fu;e 4 dk mYya?ku gSA vkidk
mDr d`zR; vuqkklughurk ,oa vkijkf/kd ekufldrk dk ifjpk;d gksdj foHkkxh; fu;ekuqlkj n.Muh; gSA
6. A bare reading of the aforesaid charges shows that no misconduct is alleged to have been
committed by the petitioner-appellant. The subject matter of the charge is that since investigation
has been made by the police and a charge-sheet has been filed under Section 498A & 406 which is a
serious misconduct under Rule 4 of the Rajasthan Civil Services Conduct Rule 1971 which is
punishable under the Rajasthan Civil Services (Classification Control and Appeal) Rule 1958.
7. Apparently, Rule 4 does not include that filing of the charge and the pendency of the criminal trial
itself is misconduct. Apparently, filing of the complaint and subsequent investigation and
prosecution on that complaint are the acts which are not and which cannot be attributed to civil
servant. Unless the disciplinary authority is satisfied about the fact that prima facie, act or omission
attributed to Civil servants are substantiable that he can have recourse to disciplinary proceedings to

hold enquiry into the alleged acts of commission or commission of the civil servant which may
constitute misconduct. But mere fact of pendency of the trial by itself cannot be misconduct of the
civil servant which can be enquired into.
8. As a matter of fact memorandum of charge on its perusal reveals that it is not founded or
satisfaction for the Disciplinary Authority about omission or commission of the alleged acts by the
civil servant but the fact of pendency of the criminal case in the court at Pali itself has been found to
be misconduct. Pendency of a criminal trial by Itself is not a misconduct under Rule 4 of the
Conduct Rules, in respect of which any inquiry can be conducted. Infact during the pendency of
investigation or trial into alleged offence committed by the Civil Servant, the CCA Rules envisage
suspension of Civil Servant during such pendency, if the Disciplinary Authority thinks It to be
desirable.
9. Enquiry can only lie be held into acts of omission of commission of Civil Servant himself and a
memorandum of charge can only be in respect of specific acts/omission or commission in such
memorandum.
10. No specific acts of commission or omission has been stated in memorandum of charges. This is
an apparent error.
11. As a matter of fact, the charge stated in the memorandum of the charges itself suggests that proof
of such charges is subject to ultimate out come of the trial on the findings of which depends the final
result of the pending trial. In such event even if the charge is not quashed as no prayer for such relief
is made in the writ petition. Since the outcome of the enquiry depends on the outcome of the
criminal trial that is to say the charge is proved against him, dismissal on the basis of the conviction,
may follow and if he is acquitted then the enquiry will result in exoneration. Therefore it was a fit
case in which in our opinion, the further inquiry in to memorandum of charges ought to remain
stayed during the pendency of the trial of the criminal case.
12. Accordingly the appeal is allowed. The judgment under appeal is set aside. Consequent to the
aforesaid discussion, the further proceedings in pursuance of Annex. 4 dated 12.1.06 in the
departmental enquiry should remain stayed until criminal trial is over.

Kusheshwar Dubey vs Bharat Coking Coal Ltd. & Ors on 6 September, 1988

Equivalent citations: 1988 AIR 2118, 1988 SCR Supl. (2) 821
Author: M Rangnath
Bench: Misra Rangnath
PETITIONER:
KUSHESHWAR DUBEY
Vs.
RESPONDENT:
BHARAT COKING COAL LTD. & ORS.
DATE OF JUDGMENT06/09/1988
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
VENKATACHALLIAH, M.N. (J)
CITATION:
1988 AIR 2118 1988 SCR Supl. (2) 821
1988 SCC (4) 319 JT 1988 (3) 576
1988 SCALE (2)641
ACT:
Disciplinary and criminal proceedings--Holding of--
Simultaneously--Whether legal bar--Not advisable to evolve a
hard and fast rule valid for all cases.
HEADNOTE:
The appellant, an employee of Respondent No. 1, was
subjected to disciplinary proceedings as also a criminal
prosecution simultaneously on the allegation that he
physically assaulted a supervising officer. He filed a civil
action in the trial court asking for injunction against the
disciplinary action pending criminal trial. The trial court
stayed further proceedings in the disciplinary action till
disposal of the criminal case. In appeal, the appellate
court affirmed the aforesaid order. However, the High Court
allowed the Revision Application of the Respondent and set
aside the impugned order on the ground that there is no bar
for an employer to proceed with the departmental proceeding
with regard to the same allegation for which a criminal case
is pending.
Allowing the appeal to this Court,
HELD: l. The order of the High Court is vacated and
that of the trial court as affirmed in appeal is restored.

The criminal action and the disciplinary proceedings were

grounded upon the same set of facts. The disciplinary
proceedings should have been stayed and the High Court was
not right in interfering with the trial court's order of
injunction which had been affirmed in appeal. [826A-B]
2(i) While there could be no legal bar for simultaneous
proceedings being taken, yet, there may be cases where it
would be appropriate to defer disciplinary proceedings
awaiting disposal of the criminal case. In the latter class
of cases it would be open to the delinquent-employee to seek
such an order of stay or injunction from the court. [825E-F]
2(ii) Whether, in the facts and circumstances of a
particular case, there should or should not be such
simultaneity of the proceedings would then receive judicial
consideration and the Court will decide in the given
circumstances of a particular case as to whether the
PG NO 821
PG NO 822
disciplinary proceedings should be interdicted, pending
criminal trial. [825F-G]
The Delhi Cloth and General Mills Ltd. v. Kushal Bhan ,
[1960] 3 SCR 227; Tata Oil Mills Co. Ltd. v. Its Workmen,
[1964] 7 SCR 555 and Jung Bahadur Singh v. Baij Nath Tiwari,
[1969] 1 SCR 134, relied upon.
Rama P. C. v. Superintendent of Police, Kolar & Anr.,
AIR 1967 54 Mysore 220; Ali Mohd. & Ors. v. Chairman T.A. &
C. Udhampur, [1981] 2 SLR 225; Moulindra Singh v. The Deputy
Commissioner & Ors ., [1973] LIC 6 1564; Shaikh Kasim v.
Superintendent of Post Office, Chingletut, AIR 1965 Mad.
502; Khusi Ram v. Union of India, [1974] LIC 553 and Project
Manager, ONGC v. Lal Chand Wazir Chand Chandna, [1982] 1 SLR
654, referred to.
3. It is neither possible nor advisable to evolve a hard
and fast, straight-jacket formula valid for all cases and of
general application without regard to the particularities of
the individual-situation.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3129of From the Judgment and Order dated
7.7.1987 of the Patna High Court in Civil Revision No. 128 of 1987 (R). R.K. Jain, Rakesh K. Khanna
and R.P. Singh for the Appellant.
R.N. Sachthey and Anip Sachthey for the Respondents. The following Order of the Court was
delivered:
ORDER Special leave granted.

The appellant is an employee in the Balihari Colliery of the Respondent No. 1 and in 1986 was
working as an electrical helper. On the allegation that he physically assaulted a supervising officer by
name S.K. Mandal, he was subjected to disciplinary proceedings as also a criminal prosecution.
Since the disciplinary proceeding as also the criminal trial were taken simultaneously, the appellant
filed a civil action in the court of Munsif at Dhanbad asking for injunction against the disciplinary
action PG NO 823 pending criminal trial. On 6.12.1986, the Munsif made an order staying further
proceedings in the disciplinary action till disposal of the criminal case. The appeal of the
Respondent No. 1 against the order of learned Munsif was dismissed on 31st March, 1987, by the
appellate court. Thereupon the Respondent No. 1 moved the High Court in its revisional
jurisdiction. The High Court by its order dated 7.7.1987 held:
"First information report was lodged against the opposite party (appellant) and the same was
pending before the competent court. Meanwhile the petitioners (respondents) started departmental
proceeding against the opposite party. The opposite party filed a suit before the trial court for
declaration that appointment of the Enquiry Officer was illegal and for restraining the petitioners
permanently from continuing with the departmental proceeding during the pendency of the
criminal case. That was allowed by the trial court and confirmed by the lower court. There is no bar
for an employer to proceed with the departmental proceeding with regard to the same allegation for
which a criminal case is pending.
I am, therefore, of the opinion that the courts below were wrong in granting injunction in favour of
the opposite party.
In the result, this application is allowed and the order impugned is set aside."
According to Mr. Jain for the appellant, the legal position settled by this Court supported the stand
that the disciplinary action had to be stayed till the criminal case was over. He relied upon the
decisions in The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, [1960] 3 SCR 227 and Tata Oil
Mills Co. Ltd. v. Its Workmen, [1964l 7 SCR 555. He also referred in the course of his submission to
the decisions of different High Courts in support of his propositions. Two cases out of the several
ones of the High Courts he relied upon are Khusi Ram v. Union of India, [1974] LIC 553 and Project
Manager, ONGC v. Lal Chand Wazir Chand Chandna, [1982] 1 SLR 654. Pathak CJ., as he then was,
In the Himachal case indicated that fair play required the postponing of the criminal trial and
Thakkar J. as our learned brother then was in the Gujarat case had also taken a similar view.
PG NO 824 We would like to point out that there are also authorities in support of the position that
there is nothing wrong in parallel proceedings being taken--one by way of the disciplinary
proceeding and the other in the criminal court. Reference may be made to decision of this Court in
Jang Bahadur Singh v. Baij Nath Tiwari, [1969] I SCR 134 and some decisions of High Courts such
as Rama P.C. v. Superintendent of Police, Kolar & Anr., AIR 1967 54 Mysore 220; Ali Mohd. & Ors.
v. Chairman T.A. & C. Udhampur, [1981] 2 SLR 225; Moulindra Singh v. The Deputy Commissioner
& Ors., [1973] LIC 6 l564 and Shaikh Kasim v. Superintendent of Police Office, Chingletut, AIR 1965
Mad. 502.

Mr. Jain contended that we should settle the law in a straight jacket formula as judicial opinion
appeared to be conflicting. We do not propose to hazard such a step as that would create greater
hardship and individual situations may not be available to be met and thereby injustice is likely to
ensue.
In the Delhi Cloth & General Mills' case (supra), it was pointed out by this Court:
"It is true that very often employers stay enquiries pending the decision of the criminal trial courts
and that is fair; but we cannot say that principles of natural justice require that an employer must
wait for the decision at least of the criminal trial court before taking action against an employee. In
Shri Bimal Kanta Mukherjee v. M/s. News man`s Printing Works, [l956l LAC 188, this was the view
taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature
or involves questions of fact or law, which are not simple, it would be advisable for the employer to
await the decision of the trial court, so that the defence of the employee in the criminal case may not
be prejudiced .... " .
In Tata Oil Mills' case (supra), Gajendragadkar, CJ, spoke for a three Judge Bench thus:
"There is yet another point which remains to be considered. The Industrial Tribunal appears to have
taken the view that since criminal proceedings had been started against Raghavan, the domestic
enquiry should have been stayed pending the final disposal of the said criminal PG NO 825
proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, it is
desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry
is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final
disposal of the criminal case .....". In Jang Bahadur's case (supra) this Court said: "The issue in the
disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to
take action against him. The same issue may arise for decision in a civil or criminal proceeding
pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary
action. The power of taking such action is vested in the disciplinary authority. The civil or criminal
court has no such power. The initiation and continuation of disciplinary proceedings in good faith is
not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The
employee is free to move the court for an order restraining the continuance of the disciplinary
proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to
contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its
lawful powers.
The view expressed in the three cases of this Court seem to support the position that while there
could be no legal bar for simultaneous proceedings being taken. yet, there may be cases where it
would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case In the
latter class of cases it would be open to the delinquent- employee to seek such an order of stay or
injunction from the Court. Whether in the facts and circumstances of a particular case there should
or should not be such simultaneity of the proceedings would then receive judicial consideration and
the Court will decide in the given circumstances of a particular case as to whether the disciplinary
proceedings should be interdicted, pending criminal trial As we have already stated that it is neither

possible nor advisable to evolve a hard and fast, straight- jacket formula valid for all cases and of
general application without regard to the particularities of the individual-situation. For the disposal
of the present case, we do not think it necessary to say, anything more, particularly when we do not
intend to lay down any general guideline.
PG NO 826 In the instant case, the criminal action and the disciplinary proceedings are grounded
upon the same set of facts. We are of the view that the disciplinary proceedings should have been
stayed and the High Court was not right in interfering with the trial court's order of injunction
which had been affirmed in appeal.
The appeal is allowed and the order of the High Court is vacated and that of the trial court as
affirmed in appeal is restored. The appellant shall be entitled to costs. Hearing fee is assessed at
Rs.2,000.
We would like to point out that for the first time in this Court, the enquiry report in the disciplinary
proceedings was produced. We express no view about it.
M.L.A. Appeal allowed.

Lalu Prasad @ Lalu Prasad Yadav vs State Of Bihar Through Cbi (Ahd) ... on 6 December, 2006

Author: . Arijit Pasayat
Bench: Dr. Arijit Pasayat, S.H. Kapadia
CASE NO.:
Appeal (crl.) 1276 of 2006
PETITIONER:
Lalu Prasad @ Lalu Prasad Yadav
RESPONDENT:
State of Bihar Through CBI (AHD) Patna
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 (Crl.) No. 5865 of 2005) WITH CRIMINAL APPEAL NO. 1278
OF 2006 (Arising out of SLP (Crl.) No. 5866 of 2005) Dr. ARIJIT PASAYAT, J Leave granted.
In both these appeals the basic question raised relates to the validity of sanction to prosecute the
appellants for offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (in short the 'Act'). Sanction has been accorded both under the provisions of
Section 19(1)(b) of the Act and Section 197 of the Code of Criminal Procedure, 1973 (in short the
'Code').
Plea relating to cognizance of the offence is that previous sanction is necessary under the Act if the
public servant does not hold the same office which he allegedly abused on the date when the
cognizance was taken by the Court. Stand of the appellants is that even though a public servant does
not hold the same office and holds some other office, then also sanction is necessary. It is stated in
that context that the decision in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183) is per incuriam
because the effect of Section 19(2) of the Act had not been considered. It is also submitted that the
effect of the recommendations made by the Law Commission in its 41st report which necessitated
sanction in terms of Section 197 of the Code extending the protection of sanction for a retired public
servant as well should have been also extended under Section 6(1) of the Prevention of Corruption
Act, 1947 (in short the '1947 Act') corresponding to Section 19(1) of the Act. This according to us is a
case of causus omissus. The decision in R. S. Nayak's case (supra) cannot be regarded as a binding
precedent in respect of the issues which did not relate to the three questions which were required to
be decided in that case. The order rejecting the plea of lack of sanction and the jurisdiction is
required to be passed by a speaking order. The Secretary to the Government had no jurisdiction to
sign the sanction order on the instructions of the Governor. Therefore, the so-called sanction of the
Governor has no sanctity in the eye of law. There is no material to show that the alleged
dis-proportionate assets were relatable to a period when Smt. Rabri Devi was the Chief Minister. At
that time she was also either holding the office of MLC or MLA and, therefore, the sanction granted

has no validity.
It is to be noted that in Lalu Prasad Yadav's case the sanction had been given by the Governor. The
prosecution did not obtain the sanction separately so far as the appellant Rabri Devi is concerned as
she was only a house wife and not a public servant during the relevant period. In the sanction
accorded in respect of the appellant- Lalu Prasad Yadav, it has been expressly mentioned that the
acts of Smt. Rabri Devi amounted to aiding and abetting of commission of offence under Section
13(1)(e) by her husband Lalu Prasad Yadav and she was thus liable to be prosecuted for offence
punishable under Sections 107 and 109 of the Indian Penal Code, 1860 (in short the 'IPC').
One of the submissions made by Shri P.P. Rao, learned senior counsel appearing for the appellants
is that the courts below had erroneously come to the conclusion that both in the case of discharge
and for framing of charge no reasons are necessarily to be recorded. It is submitted that report of
Dr. Bakshi Tekchand Committee which formed the basis of inserting Sub-section (2) of Section 6 of
1947 Act admits of no doubt and the same envisages two offices being held by the public servants
one at the time of alleged offence and other at the time of taking cognizance.
Learned counsel for the respondent-State submitted that none of the pleas raised have any
substance in law.
So far as the plea relating to causus omissus is concerned the position in law is as follows:
Two principles of construction one relating to causus omissus and the other in regard to reading
the statute as a whole appear to be well settled. Under the first principle a causus omissus cannot
be supplied by the Court except in the case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a causus omissus should not be readily inferred
and for that purpose all the parts of a statute or section must be construed together and every clause
of a section should be construed with reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular clause leads to manifestly absurd or
anomalous results which could not have been intended by the Legislature. "An intention to produce
an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to
be imputed to a statute if there is some other construction available". Where to apply words literally
would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we
must "do some violence to the words" and so achieve that obvious intention and produce a rational
construction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he also observed: "this is
not a new problem, though our standard of drafting is such that it rarely emerges".
It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but
due to those which often happen, it is good reason not to strain the words further than they reach,
by saying it is causus omissus, and that the law intended quae frequentius accidunt." "But," on the
other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom
happening, that they should not extend to it as well as if it happened more frequently, because it
happens but seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347. A causus omissus ought

not to be created by interpretation, save in some case of strong necessity. Where, however, a causus
omissus does really occur, either through the inadvertence of the legislature, or on the principle
quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left
unprovided for, must be disposed of according to the law as it existed before such statute - Causus
omissus et oblivioni datus dispositioni communis juris relinquitur; "a causus omissus," observed
Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would
be to make laws." The principles were examined in detail in Maulavi Hussein Haji Abraham Umarji
v. State of Gujarat and Anr. (JT 2004(6) SC 227).
The golden rule for construing all written instruments has been thus stated: "The grammatical and
ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some
repugnance or inconsistency with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no
further" (See Grey v. Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden rule" must,
however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain
and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even
though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified
or varied where their import is doubtful or obscure. But we assume the functions of legislators when
we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we
see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale
11, C.B. 378).
The plea that the effect of Law Commission's report and Dr. Bakshi Tekchand report has not been
considered by the Legislature and therefore this is a case of "causus omissus" is clearly without any
substance. This Court had occasion to deal with a similar plea in Kalicharan Mahapatra v. State of
Orissa (1998 (6) SCC 411). It has been noted as follows:
"13. It must be remembered that in spite of bringing such a significant change to Section 197 of the
Code in 1973, Parliament was circumspect enough not to change the wording in Section 19 of the Act
which deals with sanction. The reason is obvious. The sanction contemplated in Section 197 of the
Code concerns a public servant who "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", whereas the offences
contemplated in the PC Act are those which cannot be treated as acts either directly or even
purportedly done in the discharge of his official duties. Parliament must have desired to maintain
the distinction and hence the wording in the corresponding provision in the former PC Act was
materially imported in the new PC Act, 1988 without any change in spite of the change made in
Section 197 of the Code."
It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually
different fields. In cases covered under the Act, in respect of public servants the sanction is of
automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case
relatable to Section 197 of the Code, the substratum and basic features of the case have to be
considered to find out whether the alleged act has any nexus to the discharge of duties. Position is
not so in case of Section 19 of the Act.

The plea of causus omissus as raised by learned counsel is at variance with the stand taken in
respect of a similar plea in Parkash Singh Badal's case. In that case the stand of learned counsel for
the appellant was that the provision does not exist and has to be read into the statute and since the
effect of Section 19(2) of the Act has not been considered in R.S. Nayak's case (supra) therefore it is
a case of per incuriam. We have examined the issue in the said case and have turned out the plea.
In Shivendra Kumar v. State of Maharashtra (2001 (9) SCC
303) it was inter alia observed as follows:
"11. On a perusal of Section 6 of the Act, it is clear that previous sanction is mandatorily required for
launching prosecution against a public servant who is alleged to have committed an offence
punishable under Section 161 or 164 or 165 IPC or under sub- section (2) or sub-section (3-A) of
Section 5 of the Act. Indeed the language of the section is in the form of a prohibition against any
court taking cognizance of such offences except with previous sanction. The authority/authorities to
grant such sanction are specified in clauses
(a), (b) and (c) of sub-section (1). Under clause
(a) it is laid down that 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 sanction of the Central Government, of
the Central Government. Under clause (b), it is provided that in the case of a person who is
employed in connection with the affairs of a State and is not removable from his office save by or
with the sanction of the State Government, of the State Government; and under clause (c) in the
case of any other person, of the authority competent to remove him from his office. The difference in
the language used in clauses (a) and (b) on the one hand and clause (c) on the other, cannot be lost
sight of. While in the former, the Central Government or the State Government, as the case may be,
is to grant the sanction, under clause (c) it is specifically provided that the authority competent to
remove the delinquent public servant from office is one who is competent to grant the sanction. As
noted earlier, Section 6(1)(b) is applicable in the present case. The said provision does not specify
any particular officer as the competent authority to grant sanction. It only states that the State
Government, without whose sanction the delinquent officer cannot be removed from office/post, is
the competent authority to pass the order of sanction. From the sanction order, which is available on
the record, it is clear that the Secretary, Medical Education Department passed/signed the order of
sanction of prosecution against the appellant on behalf of the Governor. It is not the case of the
appellant that the Secretary had no authority to act on behalf of the State Government. It follows
that the order of sanction in the present case was passed by the Secretary of the Medical Education
Department with the authority of the Governor of the State Government. No material on record has
been brought to our notice to show that the Governor had issued any order authorising an officer
other than the Secretary of the Department to pass order of sanction in the case. If that was the case,
then the appellant should have produced the order or at least raised the contention that an officer
other than the Secretary had been authorised for that purpose. No such material appears to have
been produced. When the Secretary was being examined in support of the sanction order passed by
him such question was also put to him. Reliance is placed on a sentence in his deposition that he is

not the authority to remove the appellant. This statement, without further material, cannot form the
basis of the contention that the Secretary, Medical Education Department was not competent to
pass the order of sanction on behalf of the State Government. The Government functions through its
officers. The Secretary is the Head of the Department and the principal officer representing the State
Government in the Department concerned. Unless specific material is produced to show that some
other officer was competent to deal with the matter of sanction of prosecution against the appellant
it can be reasonably assumed that the Secretary of the Department is the competent authority to
pass the order of sanction. The object of Section 6 or for that matter Section 197 of the Criminal
Procedure Code, which is a pari materia provision, is that there should be no unnecessary
harassment of a public servant; the idea is to save the public servant from the harassment which
may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a
criminal complaint against him. The protection is not intended to be an absolute and unqualified
immunity against criminal prosecution. In a case where it is seen that a sanction order has been
passed by an authority who is competent under the law to represent the State Government, the
burden is heavy on the party who challenges the authority of such order to show that the authority
competent to pass the order of sanction is somebody else and not the officer who has passed the
sanction order in question."
(underlined for emphasis) That brings us to another question which though may not have any
relevance after the rejection of the principal plea, has to be considered because such issues
frequently come up for consideration.
The question raised relating to recording of reasons at the time of framing of charge is different from
a case of opinion on the basis of which an order of discharge of the accused is passed. Sections 227
and 228 of the Code with regard to discharge of accused and framing of charges against the accused
respectively in a case triable by Court of Session; Sections 239 and 240 concern discharge and
framing of charge in case of warrant, triable by the Magistrate whereas Section 245 deals with
discharge and framing of charges in cases instituted other than on the police report, indicates the
difference. The relevant provisions read as follows:
"227-Discharge: If upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the
Judge considers that there is no sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing."
"228.-Framing of Charge-(1) If, after such consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and,
by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate
of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case
may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases
instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read
and explained to the accused and the accused shall be asked whether he pleads guilty of the offence
charged or claims to be tried."
"239. When accused shall be discharged. (l) If, upon considering the police report and the
documents sent with it under Section 173 and making such examination, if any, of the accused as the
Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of
being heard, the Magistrate considers the charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so doing."
"240. Framing of charge. (l) If, upon such consideration examination, if any, and hearing, the
Magistrate is of opinion that there is ground for presuming that the accused has committed an
offence triable under this Chapter, which such Magistrate is competent to try and which, in his
opinion, could be adequately punished by him, he shall frame in writing a charge against the
accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claims to be tried."
"245: When accused shall be discharged(1) If upon taking all the evidence referred to in Section 244
the Magistrate considers, for reasons to be recorded, that no case against the accused has been made
out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at
any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the
charge to be groundless."
This Court in State of Bihar v. Ramesh Singh (AIR 1977 SC 2018) observed as follows:
"Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that
at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which
the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be
attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be
incompatible with the innocence of the accused or not. The standard of test and judgment, which is
to be finally applied before recording a finding regarding the guilt or otherwise of the accused not
exactly to be applied at the stage of deciding the matter under Sections 227 or Section 228 of the
Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the
accused or whether the trial is sure to end in his conviction."
In Kanti Bhadra Shah and Anr. v. State of West Bengal (2000 (1) SCC 722) again the question was
examined. It was held that the moment the order of discharge is passed it is imperative to record the

reasons. But for framing of charge the Court is required to form an opinion that there is ground for
presuming that the accused has committed the offence. In case of discharge of the accused the use of
the expression "reasons" has been inserted in Sections 227, 239 and 245 of the Code. At the stage of
framing of a charge the expression used is "opinion". The reason is obvious. If the reasons are
recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put
on trial. It was inter alia held as follows:
"It is pertinent to note that this section required a Magistrate to record his reasons for discharging
the accused but there is no such requirement if he forms the opinion that there is ground for
presuming that the accused had committed the offence which he is competent to try. In such a
situation he is only required to frame a charge in writing against the accused.
Even in cases instituted otherwise than on a police report the Magistrate is required to write an
order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As
per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that
no case against the accused has been made out which if unrebutted would warrant his conviction, he
shall discharge the accused. As per sub- section (2) the Magistrate is empowered to discharge the
accused at any previous stage of the case if he considers the charge to be groundless. Under both
sub-sections he is obliged to record his reasons for doing so. In this context, it is pertinent to point
out that even in a trial before a Court of Session, the Judge is required to record reasons only if he
decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he
may do so without recording his reasons for showing why he framed the charge."
But where the question of jurisdiction is raised and the trial Court is required to adjudicate that
issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question
of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons
dealing with a plea relating to jurisdiction have to be recorded.
In the ultimate, analysis in these appeals is that they are without merit and are dismissed.

M.C. Mehta vs Union Of India & Ors on 10 October, 2007

Author: S.B. Sinha
Bench: S.B. Sinha, S.H. Kapadia, D.K. Jain
CASE NO.:
Writ Petition (civil) 13381 of 1984
PETITIONER:
M.C. Mehta
RESPONDENT:
Union of India & Ors
DATE OF JUDGMENT: 10/10/2007
BENCH:
S.B. Sinha,S.H. Kapadia & D.K. Jain
JUDGMENT:
J U D G M E N T I.A. NO. 465 OF 2007 IN WRIT PETITION (CIVIL) NO. 13381 OF 1984 S.B.
SINHA, J :
1. Whether this Bench should consider the correctness of an order passed by the Governor of Uttar
Pradesh refusing to grant sanction for prosecution of Ms. Mayawati and Shri Naseemuddin Siddiqui
is the prime question involved in this application.
2. A public interest litigation was entertained by this Court in a writ application filed by the writ
petitioner. This Court with a view to ensure proper maintenance of cultural heritage of India as also
the ecology has been passing orders in the writ petition from time to time.
3. A project known as Taj Heritage Corridor Project was initiated by the Government of Uttar
Pradesh. One of the main purpose for which the same was undertaken was to divert the River
Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed
land for constructing food plazas, shops and amusement activities. The said activities on the part of
the Government of Uttar Pradesh was brought to the notice of this Court. An exception thereto was
taken. A detailed inquiry was directed to be made by the Central Bureau of Investigation (CBI).
Upon consideration of the report submitted before it by CBI, this Court in its order dated
18.09.2003 directed it to register a First Information Report and make further investigation in
accordance with law. CBI investigated into the matter, including the roles played by Ms. Mayawati,
the then Chief Minister, and Mr. Naseemuddin Siddiqui, the then Minister for Environment,
Government of Uttar Pradesh. Investigations were also carried out against some officers.
CBI was later on asked to furnish a self-contained note as regards its findings against the erring
officers and holders of public posts. A detailed report was submitted by it. A question arose as to
what directions, if any, should be issued by this Court having regard to the conflict in opinions
expressed by different authorities of CBI in regard to Ms. Mayawati and Mr. Naseemuddin Siddiqui.

The said question was considered by this Court in its judgment and order dated 27.11.2006 in M.C.
Mehta (Taj Corridor Scam) v. Union of India and Others [(2007) 1 SCC 110].
4. Indisputably, the said order of this Court has been complied with. It now appears that the learned
Special Judge directed CBI to obtain sanction of the Governor of Uttar Pradesh. By reason of an
order dated 03.06.2007 the Governor of Uttar Pradesh has refused to accord the same.
5. Mr. Krishan Mahajan, learned Amicus Curiae, who has been assisting this Court very ably in the
matter, filed an application, inter alia, praying for :
In the light of the facts and circumstances mentioned above it is most humbly prayed that this
Hon ble court may kindly be pleased to issue an appropriate writ, direction or order :
(i) Concerning the legal validity of the CBI seeking a sanction for the prosecution of Uttar Pradesh
Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui under Section 197 Cr. P.C. by
calling for the records of the materials it placed before the Governor for seeking such sanction.
(ii) Directing the CBI to produce a copy of the June 3, 2007 sanction order of His Excellency the
Governor of U.P. passed in connection with the case pending before the Special Judge/competent
court based on FIR RC 0062003A0018.
(iii) Passing appropriate directions on the legal validity or otherwise of the June 3, 2007 order of His
Excellency the U.P. Governor refusing under Section 197 (1) Cr. P.C.
sanction for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui in
relation to FIR RC 0062003A0018 registered against them by the CBI pursuant to the September
18, 2003 order ofthis Hon ble Court in I.A. 376 in CWP 13381/1984 and the investigation on which
with the opinion of the CBI Superintendent of Police was directed by this Hon ble Court on Nov. 27,
2006 to be placed before the concerned court/Special Judge for deciding the matter in accordance
with law.
(iv) Declaring that the sanction orders passed under Section 197(1) Cr. P.C. are in the public domain
and hence cannot be classified as secret.
6. Mr. Mahajan, in support of the said application, would submit that the task of protection of
cultural heritage having been undertaken by this Court and keeping in view the provisions of Article
49 of the Constitution of India, the Court should interfere in the matter and set aside the order of
the Governor of Uttar Pradesh refusing to accord sanction to prosecute Ms. Mayawati and Mr.
Naseemuddin Siddqui, keeping in view the political scenario in the country, as CBI may not show
any further interest in the matter at all.
It was urged that in a case of this nature, sanction in terms of Section 197 of the Code of Criminal
Procedure is not imperative.

7. No doubt it is an unique case. In exercise of its jurisdiction under Article 32 of the Constitution of
India and having regard to Article 49 and clause (g) of Article 51A of the Constitution of India, this
Court while entertaining the public interest litigation at the instance of the writ petitioner had been
taking all steps which have been thought necessary and proper in the matter. The question which,
however, has arisen for our consideration is, should we undertake such an exercise. No doubt, a
First Information Report has been lodged at the instance of this Court. Yet again this Court thought
it fit to issue requisite directions in its order dated 27.11.2006 directing the learned Special Judge to
apply its mind on the materials collected during investigation by CBI and pass appropriate orders
thereupon. This Court has been exercising its jurisdiction in public interest. It has been exercising
its jurisdiction to issue a writ of continuous mandamus in the light of the decision of this Court in
Vineet Narain and Others v. Union of India [(1998) 1 SCC 226].
8. We have no doubt in our mind that judiciary may step in where it finds the actions on the part of
the Legislature or the Executive are illegal or unconstitutional but the same by itself would not mean
that public interest litigation, in a case of this nature, should be converted into an adversarial
litigation. The jurisdiction of the court to issue a writ of continuous mandamus is only to see that
proper investigation is carried out. Once the court satisfies itself that a proper investigation has been
carried out, it would not venture to take over the functions of the Magistrate or pass any order which
would interfere with its judicial functions. Constitutional scheme of this country envisages dispute
resolution mechanism by an independent and impartial tribunal. No authority, save and except a
superior court in the hierarchy of judiciary, can issue any direction which otherwise take away the
discretionary jurisdiction of any court of law. Once a final report has been filed in terms of
sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate
alone who can take appropriate decision in the matter one way or the other. If it errs while passing a
judicial order, the same may be a subject matter of appeal or judicial review. There may a possibility
of the prosecuting agencies not approaching the higher forum against an order passed by the
learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in.
We should not entertain the application of the learned Amicus Curiae on such presupposition. A
judicial order passed by a Magistrate may be right or wrong, but having regard to the hierarchy of
the courts, the matter which would fall for consideration before the higher court should not be a
subject matter of a decision of this bench. In an unlikely event of the interested parties in not
questioning such orders before the higher forum, an independent public interest litigation may be
filed. Instances are not unknown where this Court has entertained public interest litigation in cases
involving similar question under Article 32 of the Constitution of India. [See Rajiv Ranjan Singh
Lalan VIII v. Union of India [(2006) 6 SCC 613].
9. It will not be out of place to mention that in Vineet Narain (supra), this Court categorically stated
that unless a proper investigation is made followed by a proper prosecution under the general law
applicable to such investigation, the rule of law will lose its significance. This Court in its order dated
27.11.2006 upon noticing Vineet Narain (supra) and Union of India v. Prakash P. Hinduja and
Another [(2003) 6 SCC 195] held : š6. Analysis of the above judgments shows that there is a
clear-cut and well-demarcated sphere of activities in the field of crime detection and crime
punishment. Investigation of an offence is the field reserved for the executive through the Police
Department, the superintendence over which vests in the State Government. The executive is

charged with a duty to keep vigilance over the law and order situation. It is obliged to prevent crime.
If an offence is committed allegedly, it is the State s duty to investigate into the offence and bring
the offender to book. Once it investigates through the Police Department and finds an offence
having been committed, it is its duty to collect evidence for the purposes of proving the offence.
Once that is completed, the investigating officer submits report to the court requesting the court to
take cognizance of the offence under Section 190 CrPC and his duty comes to an end. Therefore,
there are well-defined and well- demarcated functions in the field of crime detect ion and their
subsequent adjudication by the court. Lastly, the term investigation under Section 173(2) of the
Criminal Procedure Code includes opinion of the officer in charge of the police station as to whether
there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to
the court concerned or not. This opinion is not legal evidence. At the stage of Section 173(2) the
question of interpretation of legal evidence does not arise. In any event, that function is that of the
courts.
10. The parameters within which this Court should function in such matters are, therefore,
well-defined.
11. It is one thing to say that this Court will not refrain from exercising its jurisdiction from issuing
any direction for protection of cultural heritage and the ecology and environment; but then in
discharge of the said duty, this Court should not take upon itself the task of determining the guilt or
otherwise of an individual involved in the criminal proceeding. It should not embark upon an
enquiry in regard to the allegations of criminal misconduct so as to form an opinion one way or the
other so as to prima facie determine guilt of a person or otherwise. Any direction which could be
issued, in our opinion, has already been issued by us on 27.11.2006, stating : ›4. We, accordingly,
direct CBI to place the evidence/material collected by the investigating team along with the report of
the SP as required under Section 173(2) CrPC before the court/Special Judge concerned who will
decide the matter in accordance with law. It is necessary to add that, in this case, we were concerned
with ensuring proper and honest performance of duty by CBI and our above observations and
reasons are confined only to that aspect of the case and they should not be understood as our
opinion on the merits of accusation being investigated. We do not wish to express any opinion on
the recommendations of the SP. It is made clear that none of the other opinions/recommendations
including that of the Attorney General for India, CVC shall be forwarded to the court/Special Judge
concerned.
12. We do not think that we should go beyond the same.
13. We may observe that while entertaining a public interest litigation in a given case, this Court may
exercise a jurisdiction to set aside the decision of a constitutional authority, but we are not
concerned with such a situation. We, therefore, are of the view that we need not go further than
what we have already said in our order dated 27.11.2006 to go into the correctness or otherwise of
the order of the Governor. If no sanction of the Governor was required or if he has committed an
error in passing the said order, the appropriate court, in our opinion, would be entitled to deal
therewith, but not this Bench.

14. We, therefore, are of the opinion that this Bench should not entertain the application filed by the
learned Amicus Curiae. The said application is dismissed with the aforesaid observations.

State Of Maharashtra Tr.C.B.I vs Mahesh G.Jain on 28 May, 2013

Author: D Misra
Bench: B.S. Chauhan, Dipak Misra
State of Maharashtra Through C.B.I. ...Appellant
Versus
Mahesh G. Jain ...Respondent
J U D G M E N T
Dipak Misra, J.
The singular question that emanates for consideration in this appeal is whether the High Court of
Judicature at Bombay in Criminal Application No. 2648 of 2007 is justified in refusing to grant
leave to file an appeal by the Central Bureau of Investigation, Anti Corruption Branch, Mumbai (for
short the CBI) to assail the judgment and order dated 8th September, 2006 in Special Case No. 62 of
2000 by the Court of Special Judge for Greater Bombay whereby the learned Special Judge had
acquitted the respondent No. 1 under Sections 7, 13 (1) (d) read with 2 of the Prevention of
Corruption Act, 1988 (For brevity the Act) principally on the foundation that the sanction granted
by the competent authority was defective and illegal as there was non-application of mind which
would show lack of satisfaction.
2. At the very outset, it is condign to state that as we are only dealing with a singular issue it is not
necessary to state the facts in detail. Suffice it to state one Satish P. Doshi, proprietor of Shree
Travels, the complainant, had given his vehicles to State Bank of India on contract basis and was
entitled to receive hire charges for his vehicles periodically. The complainant experienced certain
difficulties in getting his cheques and Tax Deducted at Source certificates. When he approached the
accused-respondent, he demanded illegal gratification which was not acceded to by the
complainant. Despite consistent refusal by the complainant, the demand of the accused was
persistent which constrained the complainant to approach the CBI with a written complaint. The
CBI took up the investigation and the raiding party carried out a trap operation, seized the bribe

amount of Rs.1000/-, sent the seized article to the CFSL, obtained the sanction order and ultimately
on 5.10.2000 filed the charge-sheet before the learned Special Judge. After the trial was over the
learned Special Judge adverted to all the issues and answered all of them in the affirmative against
the accused but acquitted him solely on the base that the sanction order was defective and illegal
and that went to the very root of jurisdiction of the court.
3. Grieved by the aforesaid judgment of acquittal, the CBI filed an application for grant of leave and
the learned single Judge of the High Court of Bombay declined to grant leave on the ground that it
was doubtful whether the sanctioning authority had, in fact, actually applied its mind while granting
sanction. The High Court further opined that the view taken by the learned Special Judge in that
regard was a plausible one being not contrary to material on record and hence, it did not require any
interference.
4. We have heard Mr. Sidharth Luthra, learned Additional Solicitor General appearing for the
appellant, and Mr. V.N. Bachawat, learned senior counsel appearing for the respondent.
5. Section 19(1) of the Act postulates that 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. The said provision enumerates about the competent authorities. In the case at
hand, the competence of the authority who has granted sanction is not in question. The only aspect
that is required to be scrutinized whether the order granting sanction is valid in law.
6. Grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to public
servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is
essential to validate an order granting sanction. This Court in Jaswant Singh v. State of Punjab[1]
was considering the validity and effect of the sanction given under Section 6(1) of the Prevention of
Corruption Act, 1947. After referring to the decisions in Basdeo Agarwala v. Emperor[2] and
Gokulchand Dwarkadas Morarka v. The King[3], the Court opined as follows: -
It should be clear from the form of the sanction that the sanctioning authority considered the
evidence before it and after a consideration of all the circumstances of the case sanctioned the
prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself
the facts should be referred to indicate that the sanctioning authority had applied its mind to the
facts and circumstances of the case. In the said case, the two-Judge Bench had reproduced the order
of sanction and opined that if the same, strictly construed, indicated the consideration by the
sanctioning authority of the facts relating to the receiving of the illegal gratification by the accused.
We think it apt to reproduce the order of sanction in that case: -
Whereas I am satisfied that Jaswant Singh Patwari son of Gurdial Singh Kamboh of
village Ajaibwali had accepted an illegal gratification of Rs.50 in 5 currency notes of
Rs.10 denomination each from one Pal Singh son of S. Santa Singh of village
Fatehpur Rajputan, Tehsil Amritsar for making a favourable report on an application
for allotment of an ahata to S. Santa Singh father of the said S. Pal Singh.

And whereas the evidence available in this case clearly discloses that the said S.
Jaswant Singh Patwari had committed an offence under S. 5 of the Prevention of
Corruption Act.
Now therefore, I, N.N. Kashyap, Esquire I.C.S. Deputy Commissioner, Asr, as required by S. 6 of the
Prevention of Corruption Act of 1947, hereby sanction the prosecution of the said S. Jaswant Singh
Patwari under S. 5 of the said Act. We have quoted the aforesaid order only to highlight the
approach of this Court pertaining to application of mind that is reflected in the order.
7. In Mohd. Iqbal Ahmed v. State of Andhra Pradesh[4] this Court lucidly registered the view that it
is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning
authority after being satisfied that a case for sanction has been made out constituting an offence and
the same should be done in two ways; either (i) by producing the original sanction which itself
contains the facts constituting the offence and the grounds of satisfaction and
(ii) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the
satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must
fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void
ab initio.
8. In Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others[5] it has been ruled that the
grant of sanction is only an administrative function, though it is true that the accused may be
saddled with the liability to be prosecuted in a court of law. What is material at that time is that the
necessary facts collected during investigation constituting the offence have to be placed before the
sanctioning authority and it has to consider the material. Prima facie, the authority is required to
reach the satisfaction that the relevant facts would constitute the offence and then either grant or
refuse to grant sanction.
9. In C.S. Krishnamurthy v. State of Karnataka[6] it has been held as follows: -
...sanction order should speak for itself and in case the facts do not so appear, it should be proved by
leading evidence that all the particulars were placed before the sanctioning authority for due
application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning
authority is apparent by reading the order.
10. In R. Sundararajan v. State by DSP, SPE, CBI, Chennai[7], while dealing with the validity of the
order of sanction, the two learned Judges have expressed thus: -
it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the
sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order
granting sanction shows that all the available materials were placed before the sanctioning authority
who considered the same in great detail. Only because some of the said materials could not be
proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case
there was abundant material before the sanctioning authority, and hence we do not agree that the

sanction order was in any way vitiated.
11. In State of Karnata v. Ameerjan[8] it has been opined that an order of sanction should not be
construed in a pedantic manner. But, it is also well settled that the purpose for which an order of
sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning
authority is the best person to judge as to whether the public servant concerned should receive the
protection under the Act by refusing to accord sanction for his prosecution or not.
12. In Kootha Perumal v. State through Inspector of Police, Vigilance and Anti-Corruption[9], it has
been opined that the sanctioning authority when grants sanction on an examination of the
statements of the witnesses as also the material on record, it can safely be concluded that the
sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.
13. From the aforesaid authorities the following principles can be culled out: -
a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the
sanctioning authority after being satisfied that a case for sanction has been made out.
b) The sanction order may expressly show that the sanctioning authority has perused the material
placed before him and, after consideration of the circumstances, has granted sanction for
prosecution.
c) The prosecution may prove by adducing the evidence that the material was placed before the
sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before
him.
d) Grant of sanction is only an administrative function and the sanctioning authority is required to
prima facie reach the satisfaction that relevant facts would constitute the offence.
e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court
as it does not sit in appeal over the sanction order.
f) If the sanctioning authority has perused all the materials placed before him and some of them
have not been proved that would not vitiate the order of sanction.
g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant

against frivolous and vexatious litigants, but simultaneously an order of sanction should not be
construed in a pedantic manner and there should not be a hyper-technical approach to test its
validity.
14. Keeping in view the aforesaid principles it is to be seen whether the order of sanction granted by
the sanctioning authority withstands scrutiny or not. For the aforesaid purpose it is necessitous to
reproduce the order of sanction in entirety: -

WHEREAS, it is alleged that Shri Mahesh Gandmal Jain, Accounts Clerk working in Office
Administration Department, State Bank of India, Corporate Centre, Mumbai while working as such
on 03.04.2000, abused his official position, in as much as demanded and accepted illegal
gratification from Satish P. Doshi, Proprietor of Shree Travels, Matunga, Mumbai for handling over
TDS Certificates in the form of 16A of Income Tax Act, in respect of Shree Travels.
WHEREAS, it is alleged that in pursuance of aforesaid demand, Shri Mahes Gandmal Jain, Accourt
Clerk, on 03.04.2000 accepted the illegal gratification of Rs. 1000/- from Shri Satish P. Doshi for
the aforesaid purpose at the office of Shree Travels situated at 445, Mahilashram Road, Somaya
Building No. 2, Matunga Central Railway, Mumbai-19, before the panch witness when Mahesh
Gandmal Jain was caught red handed by the officers of CBI, ACB, Mumbai.
AND WHEREAS, the said acts on the part of Shre Mahesh Gandmal Jain constitute offences
punishable under Section 7, 13 (2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988.
AND WHEREAS, I, Shri Yeshwant Balkrishna Kelkar, Asst. General Manager, Office Administration
Dept., State Bank of India, Corporate Centre, Mumbai, being the authority competent to remove the
said Shri Mahesh Gandmal Jain, Accounts Clerk, Office Administration Dept., State Bank of India,
Corporate Centre, Mumbai from office after fully examining the material, documents i.e. Statement
of witnesses under the provisions of Section 161 of Criminal Procedure Code 1973, FIR, CFSL
Opinion and other relevant documents placed before me in regard to the said above allegations and
the facts and circumstances of the case, consider that the said Shri Mahesh Gandmal Jain has
committed the offences and he should be prosecuted in the court of law for the said offences.
NOW, therefore, I, Shri Yeshwant Balkrishna Kelakar, Asst. General Manager, Office Administration
Dept., State of Bank of India, Corporate Centre, Mumbai, do hereby accord sanction under Section
19(1)(c) of the Prevention of Corruption Act, 1988 for the prosecution of the said Shri Mahesh
Gandmal Jain for the said offences and any other offences punishable under the provisions of any
law in respect of the acts aforesaid and for taking cognizance of the said offences by the court of
competent jurisdiction.
Date : 04.10.2000 (Illegible) (SHRI Y.B. KELKAR) ASST. GENERAL MANAGER (OAD) &
APPOINTING AUTHORITY
15. Reserving our opinion on the same for the present we shall proceed to deal with the reasons for
treating the said order of sanction as invalid and improper by the learned trial Judge. The learned
trial Judge has referred to the sanction order Ext.13 and the forwarding letter Ext. 14 and,
thereafter, proceeded to observe that the order of sanction is completely bereft of elementary
details; that though the date is not mentioned in the FIR, the authority has mentioned the date in
the sanction order; that the order of sanction is delightfully vague; that the amount of bribe that
finds place in the sanction order was told to him and he had no personal knowledge about it; that
the minimum discussion is absent in the order of sanction; that grant of sanction being not an idle
formality it was incumbent on the competent authority to ascribe proper reasons on perusal of the
materials; that there is no material to show the existence of objective material to formulate the

subjective satisfaction; that the authority has granted sanction in an absolute mechanical manner;
and that the order of sanction does not reflect sincerity of approach. The High Court, while dealing
with the said reason, has really not discussed anything except stating that a possible view has been
taken by the learned trial Judge and in appeal it cannot substitute the findings merely because any
other contrary opinion can be rendered in the facts of the case.
16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning
authority has referred to the demand of the gratification for handing over TDS certificate in Form
16A of the Income-tax Act, the acceptance of illegal gratification by the accused before the panch
witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has
fully examined the material documents, namely, the FIR, CFSL report and other relevant documents
placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the
Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial Judge, as
it seems, apart from other reasons has found that the sanctioning authority has not referred to the
elementary facts and there is no objective material to justify a subjective satisfaction. The
reasonings, in our considered opinion, are absolutely hyper- technical and, in fact, can always be
used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned
trial Judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction
is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against
vexatious litigation but simultaneously when there is an order of sanction by the competent
authority indicating application of mind, the same should not be lightly dealt with. The flimsy
technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual
matrix, we must say without any iota of hesitation that the approach of the learned trial Judge as
well as that of the learned single Judge is wholly incorrect and does not deserve acceptance.
17. At this stage, we think it apposite to state that while sanctity attached to an order of sanction
should never be forgotten but simultaneously the rampant corruption in society has to be kept in
view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to
linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is
the duty of the court that the matters are appropriately dealt with on proper understanding of law of
the land. Minor irregularities or technicalities are not to be given Everestine status. It should be
borne in mind that historically corruption is a disquiet disease for healthy governance. It has the
potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust.
Corruption fundamentally is perversion and infectious and an individual perversity can become a
social evil. We have said so as we are of the convinced view that in these kind of matters there has to
be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to
further remain alive to differentiate between hyper-technical contentions and the acceptable legal
proponements.
18. We shall presently deal with the course of action that is required to be undertaken in the case at
hand. Had the High Court dealt with the appeal on merits, we would have proceeded to deal with
justifiability of the same. The High Court has declined to grant leave solely on the ground that the
conclusion reached by the learned trial Judge pertaining to validity of sanction being justified, the
judgment of acquittal did not warrant interference. There has been no deliberation on the merits of

the case.
19. At this juncture, we may note that Mr. Luthra submitted that the matter should be remitted to
the High Court to deal with the application for grant of leave as per law. Per contra, Mr. Bachawat,
learned senior counsel, submitted that if this Court would think of remitting the entire matter it
should be remanded to the learned trial Judge as he has not appropriately dealt with the real issues,
for he has been guided by the impropriety and validity of sanction. On a perusal of the judgment of
the learned trial Judge we find that he had recorded his conclusions on every aspect. He has not
rested his conclusion exclusively on sanction. True it is, he has acquitted the accused on the ground
that the order of sanction is invalid in law but simultaneously he has dealt with other facets. Thus,
remitting the matter to the trial court is not warranted. If the High Court thinks it apt to grant leave,
it has ample power to deal with the appeal from all the spectrums. It is well settled in law that it is
obligatory on the part of the appellate court to scrutinize the evidence and further its power is
coextensive with the trial court. It has power to consider all the matters which weighed with the trial
court and the reasons ascribed by it for disbelieving or accepting the witnesses. This has been so
held in Laxman Kalu v. State of Maharashtra[10] and Keshav Ganga Ram Navge v. The State of
Maharashtra[11]. Needless to emphasise that the High Court, while hearing an appeal against
conviction, can scan the evidence and weigh the probabilities. It is incumbent on the High Court to
analyse the evidence, deal with the legal issues and deliver a judgment. Thus, there is no merit in the
submission that it should be remanded to the learned trial Judge. Apart from the aforesaid reason,
we are also not inclined to remit the matter to the learned trial Judge as there would be another
round of hearing before the learned trial Judge which is avoidable. It has to be kept uppermost in
mind that remit to the trial court has to be done in very rare circumstances, for it brings in
procrastination in the criminal justice dispensation system which is not appreciated.
20. Consequently, the appeal is allowed, the judgment of the High Court and the conclusion of the
learned trial Judge pertaining to the validity of sanction are set aside and the matter is remitted to
the High Court. As we have not dealt with any other finding recorded by the learned trial Judge, it
has to be construed that there has been no expression of opinion on the merits of the case on those
counts. The High Court shall be well advised to consider all the aspects barring what has been dealt
with in this appeal while dealing with the application for grant of leave.
.J.
[Dr. B.S. Chauhan] ..J.
[Dipak Misra] New Delhi;
May 28, 2013.
-----------------------
[1] AIR 1958 SC 124

[2] AIR 1945 FC 18
[3] AIR 1948 PC 84

[4] AIR 1979 SC 677

[5] (1995) 6 SCC 225
[6] (2005) 4 SCC 81
[7] (2006) 12 SCC 749
[8] (2007) 11 SCC 273
[9] (2011) 1 SCC 491
[10] AIR 1968 SC 1390
[11] AIR 1971 SC 953
-----------------------

Surinderjit Singh Mand & Anr vs State Of Punjab & Anr on 5 July, 2016

Author: ..........................J.
Bench: Jagdish Singh Khehar, C. Nagappan
REPORTABLE
CRIMINAL APPEAL No.565 OF 2016

(Arising out of SLP(Crl.)No.3406 of 2008)
SURINDERJIT SINGH MAND & ANR. .......APPELLANTS
VERSUS
STATE OF PUNJAB & ANR. .......RESPONDENTS
J U D G M E N T
Jagdish Singh Khehar, J.
1. Leave granted.
2. Surinderjit Singh Mand and P.S. Parmar, the appellants before this Court, while holding the rank
of Deputy Superintendent of Police, were posted in District Kapurthala, in the State of Punjab,
during the relevant period in 1999. Piara Lal (holding the rank of Assistant Sub-Inspector), was also
posted at Kapurthala, at the same time. The above mentioned Piara Lals son - Neeraj Kumar was
officially arrested on 28.06.1999. The arrest of Neeraj Kumar, was made in furtherance of a First
Information Report bearing No.30, which was registered at Police Station City, Kapurthala on
03.03.1999. Before the arrest of Neeraj Kumar, his father Piara Lal was placed under suspension on
10.06.1999. The aforesaid FIR No.30, we were informed, was in respect of complaints made by
residents of Kapurthala, pertaining to theft of motorcycles and other vehicles in the city.
3. It was pointed out, that while investigating into the allegations contained in the complaint dated
03.03.1999, three persons including Neeraj Kumar were arrested on 28.06.1999. Neeraj Kumar was
granted bail on 30.06.1999. In the above view of the matter, it is apparent that Neeraj Kumar had
remained in jail for just about two/three days (from 28.06.1999 to 30.06.1999). Usha Rani - mother
of Neeraj Kumar (detained during the investigation of FIR No. 30), filed a representation asserting,
that her son had been detained on 24.06.1999 (and not on 28.06.1999, as alleged). That would make
the duration of his arrest as of six/seven days. The present controversy pertains to the additional
four/five days of the arrest of Neeraj Kumar. Her complaint highlighted, that her son Neeraj Kumar
was apprehended illegally and unauthorisedly for the period from 24.06.1999 to 28.06.1999 i.e., for
four/five days.

4. Investigation into the complaint made by Usha Rani, was directed to be conducted in the first
instance, by Munish Chawla, IPS. In the report submitted by him, it was concluded, that the charge
levelled by the mother of Neeraj Kumar, could not be substantiated. Yet again, based on the
accusations levelled by Usha Rani, another investigation was ordered. This time, it was required to
be conducted by M.F. Farooqi, IPS. Yet again, in the second enquiry, it was concluded, that there
was no material to establish that Neeraj Kumar had been in police detention from 24.06.1999
onwards, till his formal arrest on 28.06.1999. Despite the two reports submitted by two senior police
officers, wherein it was found that there was no substance in the allegations levelled by Usha Rani,
Gurpreet Deo, IPS, at her own, investigated into the matter. She too arrived at the same conclusion,
that there was no substance in the claim of Usha Rani, that her son had been illegally and
unauthorisedly detained by police personnel, prior to his formal arrest on 28.06.1999.
5. Usha Rani (mother of Neeraj Kumar) made another written complaint, this time to the Hon'ble
Administrative Judge (a sitting Judge of the Punjab and Haryana High Court) having charge of
Sessions Division, Kapurthala, on 01.10.1999. In her complaint, she reiterated, that her son Neeraj
Kumar had been illegally detained by police personnel, on 24.06.1999. The Hon'ble Administrative
Judge marked the complaint, dated 01.10.1999, to an Additional District and Sessions Judge, posted
in the Sessions Division of Kapurthala, requiring him to look into the matter. On 25.09.2000, the
concerned Additional District and Sessions Judge, Kapurthala, submitted a report concluding, that
Neeraj Kumar had been falsely implicated, because he and some other accused had been discharged
by a Court, from the proceedings initiated against them. Based on the aforesaid report dated
25.09.2000, First Information Report bearing No.46, came to be registered at Police Station City
Kapurthala, on 22.10.2002.
6. After completion of police investigation in the above FIR No.46, a chargesheet was filed against
six police officials, in the Court of the Chief Judicial Magistrate, Kapurthala, on 25.05.2003. Before
the aforesaid chargesheet was filed, the prosecution had obtained sanction under Section 197 of the
Code of Criminal Procedure (hereinafter referred to as, the Code) for prosecuting the six concerned
police officials. It is also relevant to mention, that it was the express contention of the appellants,
that on the conclusion of investigation, no involvement of the appellants had emerged, and
therefore, their names were recorded in Column No.2. It was submitted, that the aforesaid depiction
of the names of the appellants in Column No.2 by itself, demonstrates their innocence (with
reference to the allegations made by Usha Rani, that her son Neeraj Kumar had been illegally
detained from 24.06.1999).
7. It is not a matter of dispute, that after the statements of three prosecution witnesses were
recorded by the trial Court, Usha Rani moved an application under Section 319 of the Code before
the trial Judge the Chief Judicial Magistrate, Kapurthala, for taking cognizance against the
appellants herein. The aforesaid application was allowed by the trial Court, on 06.09.2003.
Thereupon, the appellants were summoned by the Chief Judicial Magistrate, Kapurthala, to face
trial. The appellants contested their summoning before the trial Court by asserting, that their
prosecution was unsustainable in law, because no sanction had been obtained by the prosecution
under Section 197 of the Code, before cognizance was taken against them.

8. Consequent upon the appellants having been summoned by the trial Court, charges were framed
against them on 23.12.2006. The order passed by the trial Court framing charges against the
appellants on 23.12.2006 was assailed by the appellants, through Criminal Revision No.348 of
2007. The primary submission advanced on behalf of the appellants before the High Court was, that
the Chief Judicial Magistrate, Kapurthala, could not have proceeded against them, in the absence of
sanction of prosecution, under Section 197 of the Code. The High Court, by its order dated
09.01.2008, dismissed the Criminal Revision filed by the appellants. The above order dated
09.01.2008 is subject matter of challenge through the instant appeal.
9. Mr. Ram Jethmalani, learned senior counsel appearing on behalf of the appellants, in order to
support the claim of the appellants, has drawn our attention to Section 197 of the Code, which is
extracted hereunder:
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or 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 (save as otherwise provided
in the Lokpal and Lokayuktas Act, 2013)-
(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;
(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:
Provided that where the alleged offence was committed by a person referred to in clause (b) during
the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in
force in a State, clause (b) will apply as if for the expression "State Government" occurring therein,
the expression "Central Government" were substituted.
XXX XXX XXX (4) The Central Government or the State Government, as the case may be, may
determine the person by whom, the manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the
Court before which the trial is to be held. (emphasis is ours) The learned senior counsel highlighted,
that sanction under Section 197 of the Code is mandatory, where the concerned public servant is
alleged to have committed an offence while acting or purporting to act in the discharge of his official
duty.
10. In order to demonstrate the ambit and scope of the term while acting or purporting to act in the
discharge of his official duty, learned senior counsel placed reliance on Dr. Hori Ram Singh vs.
Emperor, AIR (1939) FC 43, wherein the Court has observed as under:

But Sec.477-A in express terms covers the case of an officer, who willfully falsifies accounts which
may be his duty to maintain. They have apparently put theft, embezzlement, or breach of trust on
exactly the same footing as falsification of accounts, and have not considered the charge of falsifying
the accounts separately from that of criminal breach of trust. This is ignoring the significance of the
words purporting to be done which are no less important. They have thought that an act done or
purporting to be done in the execution of his duty as a servant of the Crown cannot by any stretching
of the English language be made to apply to an act which is clearly a dereliction of his duty as such.
But if an act has purported to be done in execution of duty, it may be done so, only ostensibly and
not really, and if done dishonestly may still be a dereliction of duty. The High Court Bench have
taken the view that the Section is clearly meant to apply to an act by a public servant which could be
done in good faith, but which possibly might also be done in bad faith.....The Section cannot be
meant to apply to cases where there could be no doubt that the act alleged must be in bad faith.
So far as sub-s. (1) is concerned, the question of good faith or bad faith cannot strictly arise, for the
words used are not only any act done in the execution of his duty but also any act purporting to be
done in the execution of his duty. When an act is not done in the execution of his duty, but purports
to have been done in the execution of his duty, it may very well be done in bad faith; and even an act
which cannot at all be done in execution of duty if another is made to believe wrongly that it was
being done in execution of duty. It is therefore not possible to restrict the applicability of the Section
to only such cases where an act could possibly have been done both in good and bad faith. Of course,
the question of good or bad faith cannot be gone into at the early stage at which objection may be
taken. Making false entries in a register may well be an act purported to be done in execution of
duty, which would be an offence, although it can never be done in good faith. It is sub-sec. (2) only
which introduces the element of good faith, which relieves the Court of its obligation to dismiss the
proceedings. But that sub-section relates to cases even previously instituted and in which there may
not be a defect of want of consent, and is therefore quite distinct and separate, and not merely
ancillary to sub-s.(1), as the learned Sessions Judge supposed. Having regard to the ordinary and
natural meaning of the words purporting to be done, it is difficult to say that it necessarily implies
purporting to be done in good faith, for a person who ostensibly acts in execution of his duty still
purports so to act, although he may have a dishonest intention. (emphasis is ours) Reliance was also
placed on Sankaran Moitra vs. Sadhna Das, (2006) 4 SCC 584, wherefrom our attention was drawn
to the following paragraph: 25. The High Court has stated that killing of a person by use of excessive
force could never be performance of duty. It may be correct so far as it goes. But the question is
whether that act was done in the performance of duty or in purported performance of duty. If it was
done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be
bypassed by reasoning that killing a man could never be done in an official capacity and
consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against
the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court
that if the High Court were to interfere on the ground of want of sanction, people will lose faith in
the judicial process, cannot also be a ground to dispense with a statutory requirement or protection.
Public trust in the institution can be maintained by entertaining causes coming within its
jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the
established procedure and without delay. Dispensing with of jurisdictional or statutory
requirements which may ultimately affect the adjudication itself, will itself result in people losing

faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to
enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of
Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that
sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary
and for want of sanction the prosecution must be quashed at this stage. It is not for us now to
answer the submission of learned counsel for the complainant that this is an eminently fit case for
grant of such sanction. (emphasis is ours) In order to substantiate the proposition being canvassed,
the learned senior counsel, also invited our attention to R. Balakrishna Pillai vs. State of Kerala,
(1996) 1 SCC 478, wherein this Court has held as under: 6. 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. State of Bihar, (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 public servants concerned, 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 public servant concerned
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 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 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 aforequoted words, the
protection of Section 197 will have to be extended to the public servant concerned. 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.
7. 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. (emphasis is ours)
Reliance was finally placed on P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704, and our attention
was drawn, to the following observations recorded therein:
5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking
cognizance of an offence except with the previous sanction of the Government 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 a 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 inter-related that one can postulate reasonably that it
was done by the accused in the performance of official duty, though, possibly in excess of the needs
and requirements of situation.
XXX XXX XXX

15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection
under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection
between the act complained of and the discharge of official duty. An official act can be performed in
the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197
of the Code, the acts of the accused complained of must be such that the same cannot be separated
from the discharge of official duty, but if there was no reasonable connection between them and the
performance of those duties, the official status furnishes only the occasion or opportunity for the
acts, then no sanction would be required. If the case as put forward by the prosecution fails or the
defence establishes that the act purported to be done is in discharge of duty, the proceedings will
have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be
raised any time after the cognizance; maybe immediately after cognizance or framing of charge or
even at the time of conclusion of trial and after conviction as well. But there may be certain cases
where it may not be possible to decide the question effectively without giving opportunity to the
defence to establish that what he did was in discharge of official duty. In order to come to the
conclusion whether claim of the accused, that the act that he did was in course of the performance of
his duty was a reasonable one and neither pretended nor fanciful, can be examined during the
course of trial by giving opportunity to the defence to establish it. In such an eventuality, the
question of sanction should be left open to be decided in the main judgment which may be delivered
upon conclusion of the trial. (emphasis is ours) All in all, based on the judgments referred to above,
it was contended, that even if it was assumed that Neeraj Kumar had been detained with effect from
24.06.1999, his detention by the appellants was while acting or purporting to act in the discharge of
the appellants official duties. And as such, the Chief Judicial Magistrate, Kapurthala, could not have
taken cognizance, without sanction under Section 197 of the Code.
11. Mr. Varinder S. Rana, learned counsel, who entered appearance on behalf of respondent no. 2,
seriously contested the submissions advanced on behalf of the appellants. Learned counsel
representing respondent no. 2, placed reliance on the following observations recorded by the High
Court, in the impugned order :
As far as question of sanction for prosecution of petitioners is concerned, the contentions raised by
learned counsel for the petitioners could possibly be applicable for the detention period since
28.06.1999 when Neeraj Kumar was shown to have been arrested in FIR No.30 dated 03.03.1999.
However, the petitioners are not entitled to protection of Section 197 of the Code for illegal
detention and torture of Neeraj Kumar since 24.06.1999 till 28.06.1999 when his arrest was shown
in FIR No.30 dated 03.03.1999. The said period of illegal detention and torture has no nexus much
less reasonable nexus with the discharge or purported discharge of the official duty of the
petitioners. Consequently, the impugned order cannot be said to be illegal because sanction for
prosecution of the petitioners is not required for illegal detention and torture of Neeraj Kumar
during the aforesaid period. (emphasis is ours) In order to support the conclusions drawn by the
High Court, learned counsel for respondent no. 2, also drew our attention to, Om Prakash vs. State
of Jharkhand, (2012) 12 SCC 72, wherein this Court held as under : 32. The true test as to whether a
public servant was acting or purporting to act in discharge of his duties would be whether the act
complained of was directly connected with his official duties or it was done in the discharge of his
official duties or it was so integrally connected with or attached to his office as to be inseparable

from it (K. Satwant Singh v. State of Punjab, AIR 1960 SC 266). The protection given under Section
197 of the Code 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 of the protection (State of Orissa vs. Ganesh
Chandra Jew, (2004) 8 SCC 40). If the above tests are applied to the facts of the present case, the
police must get protection given under Section 197 of the Code because the acts complained of are so
integrally connected with or attached to their office as to be inseparable from it. It is not possible for
us to come to a conclusion that the protection granted under Section 197 of the Code is used by the
police personnel in this case as a cloak for killing the deceased in cold blood. (emphasis is ours)
Reliance was then placed on Usharani vs. The Commissioner of Police, (2015) 2 KarLJ 511 (a
judgment rendered by the Karnataka High Court), to highlight the importance and significance of
personal liberty, specially with reference to unlawful detention wherein it has been observed as
under:
10. In Constitutional and Administrative Law by Hood Phillips and Jackson, it is stated thus:
The legality of any form of detention may be challenged at common law by an application for the
writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against
his officers to compel them to exercise their functions properly. The practical importance of habeas
corpus as providing a speedy judicial remedy for the determination of an applicants claim for
freedom has been asserted frequently by judies and writers. Nonetheless, the effectiveness of the
remedy depends in many instances on the width of the statutory power under which a public
authority may be acting and the willingness of the Courts to examine the legality of decision made in
reliance on wideranging statutory provision. It has been suggested that the need for the blunt
remedy of habeas corpus has diminished as judicial review has developed into an ever more flexible
jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of
substantive differences between habeas corpus and remedies under judicial review. The latter are
discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right,
granted ex debito justitiae.
11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words
habeas and corpus. Habeas Corpus literally means have his body. The general purpose of these writs
as their name indicates was to obtain the production of the individual before a Court or a Judge.
This is a prerogative process for securing the liberty of the subject by affording an effective relief of
immediate release from unlawful or unjustifiable detention, whether in prison or in private custody.
This is a writ of such a sovereign and transcendent authority that no privilege of power or place can
stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of
private individuals but also of the Executive, the greatest safeguard for personal liberty, according to
all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England,
the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by
statute. It is well established in England that the writ of habeas corpus is as of right and that the
Court has no discretion to refuse it. Unlike certiorari or mandamus, a writ of habeas corpus is as of

right to every man who is unlawfully detained. In India, it is this prerogative writ which has been
given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an
extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226
or under Article 32 of the Constitution of India. (emphasis is ours)
12. The first task, which a Court is obliged to embark upon, when confronted with a proposition of
the nature in hand, is to ascertain as to whether the alleged offence, attributed to the accused, had
been committed by an accused while acting or purporting to act in the discharge of his official duty.
In the facts and circumstances of the present case, the alleged action constituting the allegations
levelled against the appellants, is based on the arrest and detention of Neeraj Kumar from
24.06.1999 upto 28.06.1999 (before, he was admitted to have been formally arrested on
28.06.1999).
13. Insofar as the power of arrest and detention by police officials/officers is concerned, reference
may be made to Section 36 of the Code which postulates, that all police officers superior in rank to
an officer in charge of a police station, are vested with an authority to exercise the same powers
(throughout the local area, to which they are appointed), which can be exercised by the officer in
charge of a police station. Section 49 of the Code postulates, the manner in which a police officer is
to act, while taking an individual in custody. Section 49 of the Code, cautions the person making the
arrest to ensure, that the individual taken into custody, is not subjected to more restraint than is
necessary, to prevent his escape. Section 50 of the Code mandates, that every police officer arresting
a person without a warrant (as is the position, alleged in the present case), is mandated to forthwith
disclose to the person taken in custody, full particulars of the offence for which he is arrested, as
also, the grounds for such arrest. Section 50A obliges the police officer making the arrest, to
immediately inform friends/relatives of the arrested person (on obtaining particulars from the
arrested person), regarding his detention. And an entry of the arrest, and the communication of the
information of the arrest to the person nominated by the detenu, has to be recorded in a register
maintained at the police station, for the said purpose. Section 50A of the Code also mandates, that
the Magistrate before whom such an arrested person is produced, would satisfy himself that the
obligations to be discharged by the arresting officer, had been complied with.
14. Based on the aforesaid provisions of the Code, there cannot be any serious doubt about the fact,
that Surinderjit Singh Mand and P.S. Parmar, were holding the rank of Deputy Superintendent of
Police, at the relevant time (from 24.06.199 to 28.06.1999). Both the appellants were ...officers
superior in rank to an officer in charge of a police station.... Both the appellants were therefore
possessed with the authority to detain and arrest, Neeraj Kumar at the relevant time (from
24.06.1999 to 28.06.1999). The question for complying with the requirements in Sections 49, 50
and 50A does not arise for the period under reference (from 24.06.1999 to 28.06.1999), because
Neeraj Kumar according to official police records, was arrested only on 28.06.1999. The position
adopted by the appellants was, that Neeraj Kumar was not under detention for the period from
24.06.1999 to 28.06.1999.
15. Keeping the legal position emerging from the provisions of the Code referred to in the foregoing
paragraphs in mind, it was the contention of learned counsel for the respondents, that in order to

require sanction under Section 197 of the Code, it needs to be further established, that the appellants
had acted in the manner provided for under the provisions of the Code, during the period Neeraj
Kumar was allegedly arrested (from 24.06.1999 to 28.06.1999), i.e., before his admitted formal
arrest on 28.06.1999. And only if they had done so, the requirement of seeking sanction under
Section 197 would arise, because in that situation, the offence allegedly committed would be taken to
have been committed while acting or purporting to act in the discharge of their official duties. In the
present case, the arrest and detention of Neeraj Kumar from 24.06.1999 to 28.06.1999, is denied.
The formalities postulated under the Code, on the alleged arrest of Neeraj Kumar on 24.06.1999,
were admittedly not complied with, as according to the appellants, Neeraj Kumar was not arrested
on that date. It was therefore submitted, that any arrest or detention prior to 28.06.1999, if true,
was obviously without following the mandatory conditions of arrest and detention, contemplated
under the provisions (referred to above). And therefore, would not fall within the realm of acting or
purporting to act in the discharge of their official duties.
16. In order to support the submissions recorded in the foregoing paragraphs, learned counsel for
the respondents placed reliance on P.P. Unnikrishnan vs. Puttiyottil Alikutty, (2000) 8 SCC 131, and
invited our attention to the following observations recorded therein: 21. If a police officer dealing
with law and order duty uses force against unruly persons, either in his own defence or in defence of
others and exceeds such right it may amount to an offence. But such offence might fall within the
amplitude of Section 197 of the Code as well as Section 64(3) of the KP Act. But if a police officer
assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of
his authority or exercise of his duty unless he establishes that he did such acts in his defence or in
defence of others or any property. Similarly, if a police officer wrongfully confines a person in the
lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court it
would be an offence for which he cannot claim any protection in the normal course, nor can he claim
that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up
for more than 24 hours without authority is not merely abusing his duty but his act would be quite
outside the contours of his duty or authority. (emphasis is ours) Based on the provisions of the Code,
pertaining to arrest and detention of individuals at the hands of police personnel (referred to above),
it was submitted, that the arrest of Neeraj Kumar from 28.06.1999 to 30.06.1999 would
unquestionably fall within the purview of acting or purporting to act in the discharge of his official
duties (of the concerned police officers/officials who arrested Neeraj Kumar). It was however
asserted, that if the arrest of Neeraj Kumar from 24.06.1999 to 28.06.1999 (before he was formally
detained on 28.06.1999) is found to be factually correct, such arrest of Neeraj Kumar cannot be
accepted to have been made by the appellants Surinderjit Singh Mand and P.S.Parmar, while acting
or purporting to act in the discharge of their official duties. It was therefore submitted, that any
alleged criminality, in connection with the detention of Neeraj Kumar from 24.06.1999 to
28.06.1999, would not require to be sanctioned under Section 197, before the concerned Court, took
cognizance of the matter, against the concerned public servants.
17. Having given our thoughtful consideration to the contention advanced at the hands of learned
counsel for the respondents, we are of the view, that the decision rendered by this Court in the P.P.
Unnikrishnan case (supra) is clear and emphatic. The same does not leave any room for making any
choice. It is apparent, that the official arrest of Neeraj Kumar in terms of the provisions of the Code,

referred to hereinabove, would extend during the period from 28.06.1999 to 30.06.1999. The above
period of apprehension can legitimately be considered as, having been made while acting or
purporting to act in the discharge of their official duties. The factual position expressed by the
appellants is, that Neeraj Kumar was not detained for the period from 24.06.1999 to 28.06.1999.
His detention during the above period, if true, in our considered view, would certainly not emerge
from the action of the accused while acting or purporting to act in the discharge of their official
duties. If it emerges from evidence adduced before the trial Court, that Neeraj Kumar was actually
detained during the period from 24.06.1999 to 28.06.1999, the said detention cannot be taken to
have been made by the accused while acting or purporting to act in the discharge of their official
duties. More so, because it is not the case of the appellants, that they had kept Neeraj Kumar in jail
during the period from 24.06.1999 to 28.06.1999. If they had not detained him during the above
period, it is not open to anyone to assume the position, that the detention of Neeraj Kumar, during
the above period, was while acting or purporting to act in the discharge of their official duties.
Therefore, in the peculiar facts and circumstances of this case, based on the legal position declared
by this Court in the P.P. Unnikrishnan case (supra), we are of the considered view, that sanction for
prosecution of the accused in relation to the detention of Neeraj Kumar for the period from
24.06.1999 to 28.06.1999, would not be required, before a Court of competent jurisdiction, takes
cognizance with reference to the alleged arrest of Neeraj Kumar. We therefore hereby, endorse the
conclusions drawn by the High Court, to the above effect.
18. It was also the contention of learned counsel for the appellants, that the protection afforded to
public servants under Section 197 of the Code, postulating sanction prior to prosecution, on account
of the acts committed while discharging their official duties, is to shield public servants from
frivolous harassment of prosecution, at the hands of private individuals. It was therefore, the
submission of learned counsel for the respondents, that the scope and purview of Section 197 of the
Code, should be limited to the initiation of criminal proceedings under Chapter- XIV of the Code,
wherein such initiation is postulated under Section 190 (upon receipt of a complaint, wherein facts
disclose the commission of an offence, or upon a police report of such facts, or upon information
received from any person other than a police officer, that such offence had been committed). In all
the above situations, it is open to a Magistrate to take cognizance of such offence subject to the
condition, that the same falls within the jurisdictional competence of the said Magistrate. The
Magistrate would however proceed against a public servant, after sanction has been granted by the
concerned Government. And in case, the same does not fall within the competence of a Magistrate,
to commit it to a Court of Session, which can take cognizance of the same, as provided for by Section
193 of the Code. Whereupon, the Court to which the matter is committed may proceed against a
public servant, after sanction has been granted by the concerned Government under Section 197 of
the Code. In emphasizing on the above scope of sanction, it was pointed out, that Section 197 of the
Code being a part of Chapter-XIV of the Code, its applicability would extend to the provisions under
Chapter-XIV alone. It was submitted, that Section 319 of the Code is contained in Chapter XXIV,
over which Section 197 can have no bearing.
19. In continuation of the submissions noticed in the foregoing paragraphs, it was asserted by
learned counsel representing the respondents, that the prosecution contemplated under Section 197
of the Code, and the action of the Court in taking cognizance, pertain to actions initiated on the basis

of complaints, which disclose the commission of an offence, or on a police report of such facts, or
upon receipt of information from a person other than the police officer, that such offence had been
committed. It was asserted, that the above action of taking cognizance by a Court, is based on
alleged facts and not on evidence recorded by a Court. The above distinction was drawn by referring
to Section 190 of the Code which contemplates initiation of action on the basis of facts alleged
against an accused, as against, Section 319 of the Code whereunder action is triggered against the
concerned person only if it appears from the evidence recorded during the trial, that the said person
was involved in the commission of an offence. While making a reference to Section 319 of the Code,
it was submitted on behalf of the respondents, that cognizance taken under Section 319 of the Code,
was by the Court itself, and therefore, the same having been based on evidence, as also, the
satisfaction of the Court itself, that such person needed to be tried together with the other accused, it
seemed unreasonable, that sanction postulated under Section 197 of the Code should still be
required. It was pointed out, that the protection contemplated under Section 197 of the Code, was
not a prerequisite necessity, when cognizance was based on the evaluation of evidence by a Court
itself. Learned counsel emphasized, that when a Court itself had determined, that cognizance was
required to be taken, based on evidence which had been recorded by the same Court, it would be
undermining the authority of the concerned Court, if its judicial determination, was considered
subservient to the decision taken by the authorities contemplated under Section 197 of the Code.
Based on the submissions noticed above, it was the vehement contention of learned counsel for the
respondents, that the mandate of Section 197 would not extend to cases where cognizance had been
taken under Section 319 of the Code.
20. While dealing with the first contention, we have already recorded our conclusions, which are
sufficient to dispose of the matter under consideration. But, an important legal proposition has been
canvassed, as the second submission, on behalf of the respondents (which we have recorded in the
foregoing paragraph). Since it squarely arises in the facts and circumstances of this case, we
consider it our bounden duty, to render our determination thereon, as well. In the succeeding
paragraphs, we will deal with the second contention.
21. Insofar as the second contention advanced at the hands of learned counsel for the respondents is
concerned, we are of the view that there is sufficient existing precedent, to draw a conclusion in
respect of the proposition canvassed. Reference in the first instance may be made to Dilawar Singh
vs. Parvinder Singh alias Iqbal Singh, (2005) 12 SCC 709. The following observations in the above
cited judgment are of relevance to the present issue:
2. It is necessary to mention the basic facts giving rise to the present appeals. On the complaint
made by the wife, a case was registered against Parvinder Singh @ Iqbal Singh under Section
406/498-A IPC. On 27.1.2000 Parvinder Singh @ Iqbal Singh gave a complaint to the SSP, Barnala
alleging that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his house on a scooter and
forcibly took him to the Police Station Barnala. He was beaten and tortured and was subjected to
third-degree methods. Some of his relatives, namely, Jarnail Singh, Sukhdev Singh, Sadhu Singh
Grewal and Sukhdev Singh Virk came to the police station and requested the police personnel not to
beat or torture him. It was further alleged in the complaint that Jasbir Singh, ASI, told them that
they should talk to Dilawar Singh, S.H.O., who was sitting there on a chair. Dilawar Singh then

demanded an amount of Rs.20,000/- for releasing Parvinder Singh. His relations then brought the
amount, out of which Rs.15,000/- was offered to Dilawar Singh but he said that the money may be
handed over to ASI Jasbir Singh. The amount of Rs.15,000/- was then given to ASI Jasbir Singh,
who kept the same in the pocket of his coat. Parvinder Singh was medically examined on 28.1.2000
and a case was registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as "the Act"). After investigation, charge-sheet was submitted only against ASI Jasbir
Singh. A closure report was submitted against Dilawar Singh, S.H.O. as in the opinion of the
investigating officer he had not committed any offence. It may be mentioned here that for
prosecution of ASI Jasbir Singh, necessary sanction had been obtained from the competent
authority under Section 19 of the Act. After the statement of the complainant Parvinder Singh had
been recorded, he moved an application under Section 319 Cr.P.C. for summoning Dilawar Singh,
S.H.O. as a co-accused in the case. After hearing the counsel for the parties, the learned Special
Judge dismissed the application by the order dated 7.1.2002. Parvinder Singh filed a revision
petition against the aforesaid order which has been allowed by the High Court by the impugned
order dated 3.7.2002 and a direction has been issued to summon Dilawar Singh and try him in
accordance with law.
XXX XXX XXX
4. In our opinion, the contention raised by the learned counsel for the appellant is well founded.
Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as
under :
"19. Previous sanction necessary for prosecution.-(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, -
(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 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 office."
This section creates a complete bar on the power of the Court to 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 of the competent authority enumerated in clauses (a) to
(c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for
prosecution has to be granted with respect to a specific accused and only after sanction has been
granted that the Court gets the competence to take cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible

to read the section in the manner suggested by the learned counsel for the respondent that if
sanction for prosecution has been granted qua one accused, any other public servant for whose
prosecution no sanction has been granted, can also be summoned to face prosecution.
5. In State v. Raj Kumar Jain, (1998) 6 SCC 551, the Court was examining the scope of Section 6(1)
of the Prevention of Corruption Act, 1947, which is almost similar to sub-section (1) of Section 19 of
the Act. After quoting the provisions of Section 6(1) of the Prevention of Corruption Act, 1947, it was
held as under in para 5 of the Report: (SCC pp. 552-53) "5. From a plain reading of the above section
it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without
sanction of the appropriate authority. In enacting the above section, the legislature thought of
providing a reasonable protection to public servants in the discharge of their official functions so
that they may perform their duties and obligations undeterred by vexatious and unnecessary
prosecutions."
6. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, sanction had been granted for prosecution
of the accused for an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, but no
sanction had been granted for his prosecution under Section 5(1)(a) of the said Act. It was held that
no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention
of Corruption Act, 1947, as no sanction had been granted with regard to the said offence, but the
accused could be tried under Section 5(1)(d) of the said Act as there was a valid sanction for
prosecution under the aforesaid provision.
7. In State of Goa v. Babu Thomas, (2005) 8 SCC 130, decided by this Bench on 29.9.2005, it was
held that in the absence of a valid sanction on the date when the Special Judge took cognizance of
the offence, the taking of the cognizance was without jurisdiction and wholly invalid. This being the
settled position of law, the impugned order of the High Court directing summoning of the appellant
and proceeding against him along with Jasbir Singh, ASI is clearly erroneous in law.
(emphasis is ours) The above issue was also examined by this Court in Paul Varghese vs. State of
Kerala, (2007) 14 SCC 783, wherein this Court observed as under : 2. Challenge in this appeal is to
the order passed by a learned Single Judge of the Kerala High Court allowing the revision filed by
the Respondent 2 in the present appeal who was the petitioner before the High Court. He had
questioned correctness of the order passed by the Inquiry Commissioner and Special Judge,
Trichoor, by which the prayer for his impleadment as the accused in terms of Section 319 of the
Code of Criminal Procedure, 1973 (in short the Code) was accepted. By the said order the Trial Court
had held that Section 319 of the Code overrides the provisions of Section 19 of the Prevention of
Corruption Act, 1988 (in short the Act) and for exercise of power under the former provision, the
only conditions required to be fulfilled are set out in sub-section (4) of Section 319 itself. The High
Court felt that the view was not sustainable in view of what has been stated by this Court in Dilawar
Singh v. Parvinder Singh alias Iqbal Singh and Anr. (2005 (12) SCC 709). Accordingly, the order was
set aside.
XXX XXX XXX

4. As has been rightly held by the High Court in view of what has been stated in Dilawar Singh's case
(supra), the Trial Court was not justified in holding that Section 319 of the Code has to get
preference/primacy over Section 19 of the Act, and that matter stands concluded..... (emphasis is
ours) Last of all, reference may be made to a recent decision of this Court in Subramanian Swamy
vs. Manmohan Singh, (2012) 3 SCC 64. For the issue under reference, the following observations
recorded in the above judgment are relevant:
74. Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars
a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10,
11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has
accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from
approaching Court against corrupt public servants. These protections are not available to other
citizens. Public servants are treated as a special class of persons enjoying the said protection so that
they can perform their duties without fear and favour and without threats of malicious prosecution.
However, the said protection against malicious prosecution which was extended in public interest
cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality
provision of Article 14 are analogous to the provisions of protective discrimination and these
protections must be construed very narrowly. These procedural provisions relating to sanction must
be construed in such a manner as to advance the causes of honesty and justice and good governance
as opposed to escalation of corruption.
75. Therefore, in every case where an application is made to an appropriate authority for grant of
prosecution in connection with an offence under the P.C. Act it is the bounden duty of such
authority to apply its mind urgently to the situation and decide the issue without being influenced
by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure
the Rule of Law and cause of justice is advanced. In considering the question of granting or refusing
such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take
the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting
sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the
requirement to bring the culprit to book. Therefore, in this case the right of the sanctioning
authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. (emphasis is
ours)
22. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no
room for any doubt, that under Section 197 of the Code and/or sanction mandated under a special
statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary
pre-requisite, before a Court of competent jurisdiction, takes cognizance of an offence (whether
under the Indian Penal Code, or under the concerned special statutory enactment). The procedure
for obtaining sanction would be governed by the provisions of the Code and/or as mandated under
the special enactment. The words engaged in Section 197 of the Code are, ...no court shall take
cognizance of such offence except with previous sanction.... Likewise sub-section (1) of Section 19 of
the Prevention of Corruption Act provides, No Court shall take cognizance.. except with the previous
sanction.... The mandate is clear and unambiguous, that a Court shall not take cognizance without
sanction. The same needs no further elaboration. Therefore, a Court just cannot take cognizance,

without sanction by the appropriate authority. Thus viewed, we find no merit in the second
contention advanced at the hands of learned counsel for the respondents, that where cognizance is
taken under Section 319 of the Code, sanction either under Section 197 of the Code (or under the
concerned special enactment) is not a mandatory pre-requisite.
23. According to learned counsel representing respondent no. 2, the position concluded above,
would give the impression, that the determination rendered by a Court under Section 319 of the
Code, is subservient to the decision of the competent authority under Section 197. No, not at all. The
grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial
review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the
prosecution.
24. For the reasons recorded hereinabove, and in view of the conclusions recorded by us in
paragraph 17, we are of the view that there is no merit in the instant appeal and the same deserves to
be dismissed. Ordered accordingly.
..........................J.
(JAGDISH SINGH KHEHAR) ..........................J.
(C.NAGAPPAN) NEW DELHI;
JULY 05, 2016.
ITEM NO.1A COURT NO.3 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).565/2016 @ SLP(Crl.) No.3406/2008 SURINDERJIT SINGH MAND &

ANR. Appellant(s) VERSUS STATE OF PUNJAB & ANR. Respondent(s) [HEARD BY HON'BLE
JAGDISH SINGH KHEHAR AND HON'BLE C.NAGAPPAN, JJ.] Date : 05/07/2016 This appeal was
called on for pronouncement of judgment today.
For Appellant(s) Mr. Yash Pal Dhingra,Adv.
For Respondent(s) Mr. Kuldip Singh,Adv.
Mr. Rajat Sharma, Adv.

for Mr. Subhasish Bhowmick,AOR

Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the Bench comprising His
Lordship and Hon'ble Mr. Justice C. Nagappan.
For the reasons recorded in the Reportable judgment, which is placed on the file, the appeal is
dismissed.
(Renuka Sadana) (Parveen Kumar)

Court Master AR-cum-PS

Reportable
Vivek Batra … Appellant
Versus
Union of India and others … Respondents
JUDGMENT
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated
29.10.2013, passed by the High Court of Judicature at
Bombay in Criminal Writ Petition No. 3654 of 2012, whereby
the petition challenging the sanction dated 09.10.2012 for
prosecution of the appellant under Section 13 of the
Prevention of Corruption Act, 1988 is dismissed.
2. Brief facts of the case are that the appellant is an officer
of cadre of Indian Revenue Service (for short “IRS”), who
entered into the service through 1992 batch. It is stated that
an FIR RC No. BA1/2005/A0017 was registered on
04.04.2005 by Central Bureau of Investigation (CBI)
Page 1
Page 2 of 11
(Respondent No. 4) in respect of disproportionate assets to the
known sources of the appellant. The prosecution case is that
the appellant has amassed the assets valued at
Rs.1,27,38,353/- in his name and in the names of his wife
and minor son during the check period 04.01.1993 to
31.03.2004, which is disproportionate to the known sources
of his income. The investigation took almost six years to get
completed, which revealed that a sum of Rs.56,30,296/- was
invested by the appellant through Benami transactions in the
names of his wife and son in two companies, namely, M/s.
ARJ Impex Private Limited and M/s. Malik Hospitality Services
Private Limited. According to CBI, the appellant’s wife
Priyanka Batra incorporated a company, M/s. ARJ Impex
Limited, to engage in import-export business, and then sold
her shares in the company to her two uncles, namely, Karan
Singh and Vijay Kumar. The company’s main source of
income was unsecured loans obtained from various companies
and individuals, many of which were never paid back, several
of these loans were from Priyanka Batra herself. Further,
though the sale of income of the company was minimal, it
Page 2
Page 3 of 11
acquired assets of Rs.85,70,770/- during the check period. It
appears that Karan Singh and Vijay Kumar had incorporated
another company called M/s. Malik Hospitality Services,
whose main source of income was unsecured loans from
various individuals and companies. The company had
acquired assets of Rs.20,52,013/- and had unrepaid loans of
Rs.26,77,000/- during the check period. Priyanka Batra was
connected to Malik Hospitality Services as a public notice
appeared in Nav Bharat Times, showing her as the intended
purchaser of a property that was to be bought for the
company.
3. The appellant was arrested on 02.09.2010, and after
about three days released on bail. He was placed under
suspension by the authority concerned. The CBI sought
sanction for prosecution of the appellant from the competent
authority on which the file was processed, and at the first
stage on 03.05.2011 advice of Central Vigilance Commission
(CVC) was sought by the Finance Department. On
01.09.2011, the CVC recommended that the sanction for
prosecution be granted. The department concerned (Finance
Page 3
Page 4 of 11
Department) endorsed the matter again on 01.11.2011 for
fresh opinion of the CVC. But the CVC, through its Office
Memorandum dated 02.11.2011, reiterated its opinion. The
Finance Department thereafter referred the matter to
Department of Personnel and Training (for short “DOPT”) for
its views. The DOPT did not appreciate the stand of the
Finance Department that the sanction should be accorded
only if the CBI provides sufficient evidence and communicated
the same through letter dated 29.03.2012. However, it
observed that administrative warning could be issued to the
appellant for not intimating the transactions to Finance
Department. Through letter dated 28.05.2012, the DOPT
conveyed that insufficiency of evidence can be tested in the
court of law and sanction for prosecution can be granted.
Finally, the competent authority, vide its order dated
09.10.2012, granted sanction for prosecution of the appellant,
who challenged the same before the High Court in the writ
petition, which was dismissed by the impugned order.
4. Mr. K.K. Venugopal, learned senior counsel appearing on
behalf of the appellant, argued that there was categorical
Page 4
Page 5 of 11
opinion of the Finance Department that the evidence laid
before it was not sufficient to grant sanction for prosecution.
It is pointed out that there was difference of opinion between
Finance Ministry and the CVC. Not only this, even DOPT
opined that warning to the officer could be sufficient. It is
further submitted that the earlier competent authority
(Finance Minister, Government of India) had referred the
matter back to the CVC, as such, the sanction for prosecution
stood declined, and grant of the sanction by the successor
Finance Minister cannot be said to be a valid sanction for
prosecution. It is further argued that the Rules of Business
are not followed, as such, it cannot be said that the sanction
was accorded by the competent authority. In support of his
argument learned senior counsel placed reliance on Nazir
Ahmad v. King-Emperor1, and argued that where a power is
given to do a certain thing in a certain way, the thing must be
done in that way or not at all.
5. We have considered the submissions of learned senior
counsel, and perused the record.
1
AIR 1936 PC 253
Page 5
Page 6 of 11
6. Before further discussion, we thing it just and proper to
quote relevant part of Government of India (Allocation of
Business) Rules, 1961. Sub-rules (3) and (4) of Rule 3 of the
Rules read as under: -
“(3) Where sanction for the prosecution of any

person for any offence is required to be
accorded –
a) If he is a Government servant, by the

Department which is the Cadre
Controlling authority for the service of
which he is a member, and in any other
case, by the Department in which he was
working at the time of commission of the
alleged offence;
b) If he is a public servant other than a

Government servant, appointed by the
Central Government, by the Department
administratively concerned with the
organization in which he was working at
the time of commission of the alleged
offence; and
c) In any other case, by the Department

which administers the Act under which
the alleged offence is committed;
Provided that where, for offences alleged

to have been committed, sanction is required
under more than one Act, it shall be competent
for the Department which administers any of
such Acts to accord sanction under all such
Acts.
Page 6
Page 7 of 11
(4) Notwithstanding anything contained in

sub-rule (3), the President may, by general or
special order, direct that in any case or class of
case, the sanction shall be by the Department
of Personnel and Training.”
7. There is no dispute that for an IRS officer Cadre
Controlling Authority is the Finance Minister of the
Government of India. In Bachhittar Singh v. The State of
Punjab2, Constitution Bench of this Court has held that the
business of the State is a complicated one and has necessarily
to be conducted through the agency of large number of
officials and authorities.

8. In Jasbir Singh Chhabra and others v. State of
Punjab and others3, this Court held as under: -
“35. It must always be remembered that in a

democratic polity like ours, the functions of the
Government are carried out by different individuals
at different levels. The issues and policy matters
which are required to be decided by the Government
are dealt with by several functionaries some of
whom may record notings on the files favouring a
particular person or group of persons. Someone
may suggest a particular line of action, which may
not be conducive to public interest and others may
suggest adoption of a different mode in larger public
interest. However, the final decision is required to
be taken by the designated authority keeping in
2
[1962] Supp. 3 SCR 713
3
(2010) 4 SCC 192
Page 7
Page 8 of 11
view the larger public interest. The notings recorded

in the files cannot be made basis for recording a
finding that the ultimate decision taken by the
Government is tainted by mala fides or is influenced
by extraneous considerations……”
9. In Sethi Auto Service Station and another v. Delhi
Development Authority and others4, this Court observed as
under: -
“14. It is trite to state that notings in a
departmental file do not have the sanction of law to
be an effective order. A noting by an officer is an
expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use
and consideration of the other officials of the
department and for the benefit of the final
decision-making authority. Needless to add that
internal notings are not meant for outside exposure.
Notings in the file culminate into an executable
order, affecting the rights of the parties, only when
it reaches the final decision-making authority in the
department, gets his approval and the final order is
communicated to the person concerned.”
10. In view of the law laid down by this Court, as above, we
are of the opinion that the sanction cannot be held invalid only
for the reason that in the administrative notings different
authorities have opined differently before the competent
authority took the decision in the matter. It is not a case
where the Finance Minister was not the competent authority
4
(2009) 1 SCC 180
Page 8
Page 9 of 11
to grant the sanction. What is required under Section 19 of
the Prevention of Corruption Act, 1988 is that for taking the
cognizance of an offence, punishable under Sections 7, 10, 11,
13 and 15 of the Act committed by the public servant, is
necessary by the Central Government or the State
Government, as the case may be, and in the case of a public
servant, who is neither employed in connection with affairs of
the Union or the State, from the authority competent to
remove him. Sub-section (2) of Section 19 of the Act provides
that 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 authority, such sanction shall be given by
that Government or authority which could have been
competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
Sub-section (3) of Section 19 of the Prevention of Corruption
Act, 1988 provides as under: -
“(3) Notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974), -
Page 9
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(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.”
11. Having gone through the copy of note-sheets relating to
sanction in question placed before us as part of rejoinder
affidavit, it is evident that there had been proper application of
mind on the part of the competent authority before the
sanction was accorded. Our perusal of the said record does
not indicate that any decision was taken by the competent
authority, at any point of time, not to grant sanction so as to
give the decision to grant sanction the colour of a review of any
such earlier order, as has been contended before us. The
Page 10
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opinion of CVC, which was reaffirmed and ultimately prevailed
in according the sanction, cannot be said to be irrelevant for
the reason that clause (g) of Section 8 of the Central Vigilance
Commission Act, 2003 provides that it is one of the functions
of the CVC to tender advice to the Central Government on
such matters as may be referred to it by the Government.
12. For the reasons, as discussed above, we find no reason to
interfere with the impugned order passed by the High Court
dismissing the writ petition. Accordingly, the appeal is
dismissed. The interim order dated 25.11.2014, passed by
this Court, is hereby vacated. The trial court is directed to
conclude the trial expeditiously. However, we clarify that we
have not given any opinion as to the merits of the case. There
shall be no order as to costs.
……………………………..J.
[Ranjan Gogoi]
……………………………..J.
[Prafulla C. Pant]
New Delhi;
October 18, 2016.
Page 11

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Abhay Singh Chautala vs C.B.

Supreme Court of India

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1257 OF 2011

(Arising out of SLP (Crl.) No. 7384 of 2010)

Abhay Singh Chautala ... Appellant

C.B.I. ... Respondent

CRIMINAL APPEAL NO. 1258 OF 2011

(Arising out of SLP (Crl.) No. 7428 of 2010)

Ajay Singh Chautala ... Appellant

C.B.I. ... Respondent

2. Leave granted in both the Special Leave Petitions.

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 1

1. 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan

2. 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan

3. 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from

4. 2.8.2004 to 03.11.09 Member of Parliament, Rajya Sabha

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 2

Section 19 runs as under:-

"19. Previous sanction necessary for prosecution.

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 3

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

Explanation: For the purposes of this Section, -

(a) Error includes competency of the authority to grant sanction;

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 4

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 5

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 6

Hyderabad) v. Air Commodore Kailash Chand :

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 7

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 8

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 9

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Indian Kanoon - http://indiankanoon.org/doc/1342360/ 11

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precedent. They would be wrong. Consistency is necessary to certainty - one of the

The Court also referred to the following other cases:-

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Indian Kanoon - http://indiankanoon.org/doc/1342360/ 14

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Indian Kanoon - http://indiankanoon.org/doc/1342360/ 17

[V.S. Sirpurkar] ..........................J.

[T.S. THAKUR] New Delhi;

Indian Kanoon - http://indiankanoon.org/doc/1342360/ 18

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NOS. 1077-1081 OF 2013

Central Bureau of Investigation,

Ramesh Gelli and Others ...Respondents

WRIT PETITION (CRL.) NO. 167 OF 2015

Ramesh Gelli ...Writ Petitioner

Central Bureau of Investigation through

PER RANJAN GOGOI, J.

1. I have had the privilege of going through the judgment of

my learned brother Prafulla C. Pant, J. Though I am in full

agreement with the conclusions reached by my learned

brother, I would like to give my own reasons for the same.

2. The question arising has to be answered firstly within the