R. S. NAYAK versus A.R. ANTULAY

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R. S. NAYAK

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A.R.ANTULAY

February, 16, 1984 ·

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[0. A. DESA!, R. S. PATHAK', 0. CHJNNAPPA REDDY, A. P. SEN AND V. BALA!<RISHNA ERADI, JJ.J

Preventfoi1 of Corruption ·Act, 1947-S . ... : 6-Jnterp'retatiOfl of Whether court C

can tak~ .co_gnizance of o.(fences enu"1~rateu· iii _s. 6 agiiihst public S[YV'!_nf withouf sanction 9/ co1npetent ·authority-Which is co1npetent authority to givk sanctio11- What is r'e!evant date on which sanction be there_,:...For. ·attracting s.6 acCu.sed should·. he a public serl'ant both on date oj o.lfenCe and on date when court, .takes cognizon~e pf offe'nce. In cases Where accused holds several offices each One of. which makes him publi.c· serVaiit-Whether sanction of corripeteizt -a~thorilies of all the. . offices necessary or whether.· sanction o.f that cdmpetent authoritY alone under which public servant has D · lnisus~d his offipe· is sufficient.

Indian Penal Code-s.21, clauses (3}, (7) and 02) (a)-Defenition 'of ~Public

•servant'-$cope oj....:....Whether Memf?er -of State Legisl~tive· Assembly .a

'public' Ser- ·

vant'. "Express qns 'Qr, 'pay', in the pay "of, and

'Government, nsed 1"n s. 21,eXp/afned.

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.Construction~of Statutes-.Rule of:._Const1;11ct on n1ust advance obj~ct Of Act- Court 1nust give' effect tO natural 1neaning of words-In case of atizhig_uity court must ascertain. intenatio~1 oflegisfature behind Act;_Cour{ can. take h~lp of external aids-· "r· While.c,onst~ucting anc_ient. statute court can.look.at surrOunding circumstances when

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statute was endcted. ·

Words and Phrases-Wordf 'or· and· 'pay,11iea1iing_of, Phrase

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Explained.

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The. appellant, R:S. Nayak,

llled·a complaint against the reSpondent,· A.R. Antulay, ·:i public servant -being the Chief Minister of MaharaShtra siate, under ss: 161, 165 I.P.C. ands. 5·~f tl:ie Pi"evCntion·of Corruption Act, 1947 (1947 Act) allegi·ng_abus~· of offi.Ce of Cliief Ministef. The complaint.was rejected on account. of absence of nrcessary sanction of the Govern·Or of Maharashtra · State under s.6 of the 1947 Act t6 prOsecutc the i'espondcn,t. .Aftet the G~vemor issued neceSsary _a fresh complaint in the Court of .Special Jud~ aiainst sanction, the apJ:,ellaht" filed . the, respondenf on the same grounds. Hciwe"ver, . on the date of.. filing fresh corn- . G plaint the_respi:>~derit had a'Iready resigned as Chief Minister. The respondent cOn-· !.. . tended that the SpeCial Judge ha~ no jurisdiction to try him under. s. 7 of the Cdmi. . nal Law Amendment Act, 1952 and that no cognizance could be iake!l ~n~ private complaint. The· Special Judge rejected both the contentions. Jn the· rneantinie the State GoVernment issued ·a notification under s. 7(2) of tlie Crii:ninal Law. Amend- ment Act~ 1752 under whi.ch the· ·case was transfe~r¢ to another. S~ia.I JudgC'. In ~ crin1inal revisiorl. applic_atioO filed. by the repsondent aga.inst the· order of earlier

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SUPREME CQURT REPORTS

[1984] 2 s.c.R.

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Special Judge, a Division Ben~h of th~ High Court held .that the Soecail Judge had· ·jurisdiction to try ihe reSpondent 3.nd that the private complaint ~vas maintainable. 'Wh.en the latter Sp~ial Judge-proceeded with the case th_e respondent fi!C:d an appli ·cation for his discharge on the grounQs that the charge agai~st hin1 was baseless ""and· that he beiilg· a Me1nber of Legislative -Assenibly (M.L.A) requisite sanction. under s .. 6. of tht 1947 Act waS necesSary. The Special Judge discharged the respon- dent holding that the -respondent being ML A \Vas a public servant within s. 2-1 the sanction of-the Legisl{ltivc- Assembly (ll)(ri) of LP.C~ and in the absence Of 'he "could not take ~ognizapce of 6ffeh~e: The sPecial Judge ai_so held that the 'inate r.ia·l date fo1· deciding the ap'pliciLbility- of s .. 6 Of the 1947 ACt was the date on whicl) th¢ Court waS askbd to take cognizance of the offence. The.appel!ani challenged the order of the Sp~ial Judge in this Appeal.·

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The questions which arose for consideratio11 were:-

(a) What is- the relevant date with 1eference to which a valid sanction is a ·a' pre~requisitc .for the prosecutiOn of a public servant' for offences enu merated-ins. ·6 of the 1947 Act ?

(b)

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If the accused hcilds_ Several_ offices occupyi.ng ea~h of w'hich n1akes _) hin1 a public-servant, ·is sanction or each one of the competent authori~ ties entitled to.remove hi1n.froin each one of the offices held b~' hin1 neces~ sary. and if anyone of the Competent authorities fai!S or declines ·to grant sanction, i" the Court precluded or prohibited ·froni taking cognizance_' of the offence with \vJ:tich the public servant is charged, or. is it implicit in s. 6 of the 1947 Act that stinctiOn of that -competent authority ~lo*:: is necessary wbich is entitled to· ren~ove the public servant from the office

··which· is alleged· to have been abLiSed, or' 1ni_sused for corrupt n1qtives ? -+ .

(C) ~Js M.L.A. a'public .servant within the !neaning of the expression in cl_auses

l2{a), 3 and 7 of s. 21 l.P.c;. ?

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(d)

Is sanction as contemplated by s. 6 pf the 1947 Act ncCe~sary for prose Cution of M.L.A. and if so, 'which is the. sa1lctioning authority con1petent tO reffiovc M.L.J\. fron1 the office oJ Meinber of the Legislative Asse1nbly ?

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Allowing the- appeal.

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HELD; The provisons of ~he Act m~st rcc~ive s~ch construction at the hands a

of the Court as would advance the o.bject and purpose underlying the _Act and 'Ut any rate not defeat it. If the \vords of the s"tatuTe arc clear and unan1biguous, it is is the 'pliinest duty, of the court ~o givr effect tO the natural meaning.of the _words,, ··used in the provisions. Tn the event ·of an ambiguity of the plain n1ean'ing of the .wor4s used in -the statute being sclf~d~feating, the court ~s entitleQ to sascertain the intention of the legislature to remoye the ambiguity by c~nstruing the provisio!1 of . the.statute as a Whole keeping in v.lew what was the mischief when the sta{ute was Cnacted and to remove which the legislature ena~ted the statute.· Wheneevei· a question of construction arises upon an1biguity or where two vie'ws are poss-ible of}· o'f a-provision, it would be the duty of the court to adopt that constrJJction which would ·adva-~ce tlie object underlying the_ Act. ·[512 A-C]

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The basic purpo'se underlying all canons of"constraction is the ascertainment

R. S. NAYAK V. A. R .. ANTULAY

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\Vith reasonable certainty of the "intention of Parliament in enacting the legislation.. A F.or this purpose whY should the aids whiCh. Parliament availed of such as .report:of a speCial committee precedin.e enactment, existing state of law, the envir~nrnent ' necessitating· enactment Of legislation, and the object. sought to be achieved, be denied tO cotlrt whose function is primarily to give. effect to the real- intetion of the _Parliament in Cna~ting the legislation. Such deniai ·would deprive the court of a· substantia) and illuminating aid to construction. Therefore, departin~ from· the· earlier English· decisions, the reports Or the committee which pre_ceded the enactment of a legislation, reports of Joint ·Parliamentary Committee, report"of a commission ·Set up for c_olleCting iriforma1ion l~ading to the.ena~tment are permissible external aids to cOnstructi.?n. [527A.;D-,EJ

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. In cofistruing <i statut.e more especially the ancient statute, the court may look the statute was e~acted. -The .construction

at th~ surrounding circumstances when of ancient statutes may be e!udicatcd by.what in the language' of the courts is ca11ed C contettiporaf1ea expoSitio, that is, by seeing how they Were understood at the time when they were passed. [528F-G]

Standard dictionaries as a rule give in respect of each word a:s many meanings likely to be used in different contexts refer to dictionaries to

in which the word has either been used or it is ana. connections~ While it may be penn~ssible to out the meaning in :which a W.ord is capable of being used or understood in·common parlance, the_ well-known cannon ·of construction should not even for a minUte be overloohed that the meaning to the words and expressions Use'd in a· statute ordi· ita~ily tak:e their Colour from the context' in which they appear. [539F-G]

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Deputy Chief Control/er of bnports & §xports, New Delh v.: K.T. Kosa/ram & Ors., [1971] 2 S.C.R. 507 at 517; and ·State Bank a/India, v. IN.,Sund<va Money, [1976] 3 S.C.R. 160, referred to.

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S~ction 6 of the P.reventio-n of Corruption Act, 1947 bars the Courts from takii:ig · c0gnizance of the offences therein eriumerated alleged· to have been coinmitted. by a public servant exc("pt ·wi.th the previous sanction of the competent authority em p_owered to grant the requisite.sanction. T~efefore, when the cOurt is called upon · to take cognizance of such offences, it rpust enquire whether there is a valid san ction to prosecute the public· servant for the ·offence alleged to have been commit ted by him cis public ·servant. Undoubtedly the accused must be ·a public ~ervant when he is atleged to have corhmitted the offence of which he is accused because ss. 161, 164, 165 I.P.C. and s. 5(2) of the 1947 Act clearly spell ·out that the Offefices there in definec.1 can be committed by a public servant/ A tda·I without a valid san Ction where one is necessary under s.6 would be a trial withqut jurisdiction by. the court. lt is well settled that the relevant ·date with reference to which a valid san ction is s)ne· qua n'on for taking cognizance of an offence· committed by a public ser varit as required by s.6 is the date when the court is called upon to take cognizance of the·offence of whicQ. he is accused. If, therefore, when the. offence is alleged t'o have been committed, the accused was a public servant but by the time the court is called upon to take cOgniZ?-nce of the-offence cornniitted by him ·as public servant, he has ceased to be a public servant, s. 6 will not be attracted and no sanctiori Vi'ould be necessary for tahing cognizance of the offence against him. This approach iS in accOt;d with the policy undei!Ying s."6 in that a public ·s~rva.nt is not to be expOsed to harassn1cnt of a frivolGLiS or spc_culati...-~prc~ect.tic n. Tf h~ has ceased to be a public

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498

SU~REME COURT REPORTS

[!984] 2 S.C..R.

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servant in th::nt;>aritime, ·this vJtaJ·consideratioit cc.a5es to 6:idst. [512D; .. H; ~13 A-El

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C.R. Ban,~i v: Stilt~ oi·Mah"arashfra, [1971] }fs.C.R. 236; R.R. Chari v .. State !1963] 1 S.C.R. 121; ·s.N. Bose v. Staie of Bhar, [1968] •.3 S,C.R. 561;.

of U.P., Mahcf. Iqbal Ahmed v. State of A.P., p979j 2 .s.C.R. 1007; S.A. Ve1lkatarama11 v. ··The State. [195~] S.C.R. l04Q·at 1052; K.S. Dha;1nadatan v. Central Govenunent &-·

Ors., [1979] 3 S.C.R. 832, referred to.

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In t·he instant case, lol}g· befOrc the date orl which the togniza.11cc \VaS takeJ1: by·.the Special Judge, the accused had ceaSed- to hold the office of ,the Chief Minister. and ~S-. sUch had ceased to he a public.servant i_n his. capaCity as ~hief Minister. A fortiori no sanction· as_ cont6n1plated _by s. 6 was necessary before co&nizance of th~ offence could .be taken against the accusCd for offences ·alleged to have been conunit- . "ted in his fon:ner capacity as public servant.. [514D......!.E]

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The subn1ission that if the accused has held. or hold$ a plurality. of offices · occ~lpying each One of which ~kes ·him a pubiic sefvaJ1t, under s. 6 sariction Or ea~h Ohc 9f the compete~t authorities entitiCct to . .ren1ovc _him from each one of the offices held by hith, would be necessary ·and if anyone of 'the co1Tipetcnt .authorities ··fails or·cteclines tri ·graiit sanction,_the court iS pr~luded or prohibited from ti:ik.ing cognizance of the C?ffcnce with \Vhich the public servailf is· charged, is ncit acceptable .. Such an interpr'.etation Of s.6' would fender . it as a shield .to .an ·unscrupulous publ~c · ~~.rvant. Soineorie int~rested in pfote~ting·may shift bim:from one office of pltbli.c • se_rv<l;_nt fo anothef and there· by.defeat the pro.cess· of Jaw. ·Such an interpretation. is confrary to ail cannons of 'i.,OllStruction.andJeads to afi absurd end ptoduct .w~ich of.necessity must be avoideO. [5200; 518F..,......O] '

. \ ~ , Tlfe Stat~· (S,}'.E. Hyderabad) v. Arr Conifnodore Kai/ash" Chand,

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S.C:R. 697, referred ·to and partly dissented from.

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The expression>office' in the. three ~uh-clauses. of s.6(1) clearly denotes. that o'flice \Vhich ·1f1e pubiic. servan.t misused or abused for corrupt motive<> fo.r which he is to be prosecuted· and in reSpect .of which ·a sanCtion to PrQsecutc .him. is 'nec.essa.ry • ·by the COmpetent authority entitled to remove him fron1 that office which he has . 3.bused. T~e sanction ··tb prosecute a public sCrv~nt can be given .PY an authority compCtent tO remove him from the offi.Ce which .be has misused or abused because th~t auth~rity alone would Qe able. to '<no'I".' \"1hether th6re h~s beell a 1nisuse or. '. abuse ~f the Office by the public servant and 1\ot some rank outsider:. The authority entitled to graht sanction n1.us't apply its mind to the facts of the case, 'evidf;ll~ cot-· lected and other incidental facts before aCcording sanction. .A grant of sanc!ion is not an idle forn1<1lity. but a so·Je1nn arid sacrosanct act which ren10Ves the u1nbre!la of protection of.govermnent servarlts ~gainst frivolous. prOsecutions and the· afore sa·id req1\iren1cnts n1ust;therefore, be.strictly Con1plied with before any jjroseclition · coul~ be it i~ i1nplicit in s.6 that . sanction· of th;it. con1pet.ent authority alone would be· necessary which is co1npetcnt· . to remove t~e public servant.from the Office which he is aile~ed to have misused or abused for corrupt motive and for \vhich a prosecution is intended to be launchecl a ~aii]st him: [5!6H; 517A~D]

launched agairis~ publjc !'iervants. Therefore,

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.Mohd. Iqbal Ahmed v. State •f A.,p., [1,7,] 2 s·.c.R. !007, referred to.

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R. S. NAYAK V. A. R. ANTULAY

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. The fi1iding of the Special Judge that the respondent ·being· M.L.A. was a.public servant within clauses (12)(a) (35 and (7) ·of s.21 I.P.C: and sanction of the Legis is riot corfect.. A person.· would lative Assenlbiy to prosecute hin1 was necessary, if he· falfs under any of the ·be a -public se~aOt under clauSe {12)(a) of s. 2-1 T.P.C: following three categories: (i) if be is in the service of 'the Governn1ent; or ·(ii) if h_e is in the pay of the Gov~rninent; or_(iii) if he·is remunerated bY fees or commission for ihe performance of any public duty by the Government. Looking into the history . and evolution of s.21 I.P.C. as fraced and .adopted as an- external ·aid· to construe~ ""-~ ~ tiOn, it is clear that M.L.A .. was not and is not a. 'public ~ervatlt' ,Vithin the _mean ing of expression .In any of·the clauses of s._ 2J J.P.C. AssLming that' it wou:ci .not J.. be legally sound Or correct according to· well-ftCcepted carir.cn_'Of constn.:ctior: of a . . stafute to construe s. 21(12)(a) by n1ere.historkal eYo}ution of !he. recticr,, 11:e- coJ'isti tutiohaliy viilid api)roach would be to look at the ln.nguage coiploycd in t~e rccticn to ascertian whether M.L.A. iS a public servant within the n1eanir,g of t11e expression in that section. Dependiti'g up'on the context, 'ot' may be read as 'ar;<r Cut the COlil t would· not do it unless it is so obliged bee-a use 'or' dces ~ot genei ~tliy n1ean '<!-r.d: h.nd 'and' does not generally nlean ··or'. The use o(the exp·ression 'or' in the con- teJ\t iii' which it is~used in·cl.(12) (a) does appear tO be a disjunctive .. ·Therefore, these three qategories are independent categori~s and :if a pe1son falls in any of .~hen1 _he ·Would be a public servant. The que'stiori is whetliet M.;L.A. falls-urid~r any of the above three ciitegories ?. It Was .coflccded that M.L.A .. is flot in the service o:J: the Government but it was contended that M.L.A, is in ihe pay of the Governn1ent. UJJ-doubtedly, M.L.A. receives a salary ahd allowaiices in his.capacity as M.L;A· Under· the relevant statute. But does it rnak_e him-a person 'in tJ1c Pay of the Govern n1ent'? The word 'pay' _standing by itself is open to various_ shades of meaning and when the Word is used in a phrase in .the pay.- of' it·is more iibely to have R different connotation. than when standing. by itself. The pbra£e 'in the pay of' would oidi~· narily import ·the elen1ent of:employrnent or paid c:n1plo)rr:etit or <n·1p1C.yt.d and paid -by the en1p1oyer. The_ phrase· does -not import ·of _necessity a nlaster-srn ant 4--· rclatio'nship. In its setting the phrase. ~in the pay of the GoveuJn1ent' in cl. (l2)(a) n1ay compreh~nd a situtation that the persOn may be in the pay of tl1e Goverriment without beiug in the employment of the Gnverriment or without lhe:fe te;r g a irasft1- Servant r~latiOnship between the person receiving ·the pay and the- Gov_ernmen't as payer~ NeXt what does the ·expression 'dovernme:ti.f in cl.(12)(3.) of s. 21' I.P.C. con note? Section 171.P.C. 'provides thafthe word. •Government' denotes the Central Government or the· Governrhent· of a State. Sec. 7 I.P.C. provides tha·t 'every ex.:' pre.sslon which js explained in any patt ofthE:_Code, is used in-every part Of the Code in conforrriity with the expJanation'. Let it be note{L that Unlike th6 n1odern stat~te ,s. 7 does not provide unless the context otherwise indicate', a pllr~se that prefea}:es· the dictionary clauses of a ·modein ·statute. ·Therefore, the expressi'on "Gove1Tn ment' in- s.21(12)(a) mi.ist either mean the . Central Government or the G:overnment of a State .. _The ·eentraI·Government being out of consideration the-question is whether M.L.A-. is in the pay_ of the· Qoverrunent of a State or. ~s remunerate~ by fees for the performance Of aily public duty by the Government of a State. Even . thoilgh M-.L.A. ~eives pa~ and aiioWances, he is not in the- pa.f.of the Stat~ Govern ment because "tegislatore of a State cannot' be com_prchended in the·express_ion 'State G.overnmen_t'. This conclusion would go".etn also- the third part of cl.'. (l2)(a) i.e . ..; 'remunerated by fees foi: performance of any public cJuty by the Government. ThCre~ · fore, if M.L.A. i~ not in the pay of the Government ~-the Sense of executive goYern ment or is notromuneI'a1:ed It~ fees for perfofm'a•_ce of anx public_c:u1f by ttae·exe-

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500

SUPREME COU.RT REEPOR TS

[1984] Z S.C.R,

cuti\le government, ~rtainly he would not be cotriprehended in the expression 'public servant' within the meaning of the,exPression in cl: (12),(a). He is thus not a public servant withiri the nieaning of the @pression in ct (12)(a). This conclusion rein forces the earlier conclusion reached after examining t~e historical ev01ution. or cl. (12)(a). l537 A-B; ;360; E; H; 537. H;E; 539 D-E; Hl A; D-F; 543 D-E; 551 A~B]

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Evoluuon of Par11a1nentary.Privileges by S. K. Nag,' ·Leg1s!at1ve Bodies Corrupt· . Pradtices Act, 1925; Pre'Ventwn of Corrupnon Act, 1947 by S'"etlu .and Anand P. 60; Santhanan1 Co1nm1ttee Report dt. 31-3.-1964; Lok Sabha Debates_. (Tlurd Senes) ~ Vol. 35, Ck 729 and 731; The Ant1-Corrupt1011_ Laws (Amendment) B1//. 1964 (ena cted as Act 40 of 1964); G.A. Monterw v. The State of Ajmer, [1956] S.C.R. 682; The State of Ajmer Y. Sh1vj1 Lal. [1959j Supp. 2 S.C.R. 739; Prabhashanker Dw1ved1 and Anr. v. The State of .Gujarat, AIR 1970 Gujarat 97; State ,of Gujarat v. Man shank~r Prabhashanker DwzVedi, [i973} l S.C.R. 313; Green v. Premier Glynrohonwy Slate Co. Ltd., [1928] 1K.B.561at568; Bab1 Manmohan Das Shah & Ors. v. Bis/mu _Das, [1967) 1 S.C.R. 836 at 839; K.amta Prasad Aggarwal.etc. v. Executive E11gu1eer, Ballabgarh & Anr., [1974] 2 S.C.R 827 at 830; M. Ka.rtman1dJ11 v. Union of India, [1979] 3 S.C.R. 254; Constituent Assembly Debates, Vol. VU p. 984; Rm Sahib Ram Jawaya Kapur & Ois. v. The State of Punjab. [1955] 2 S.C.R. 225 at p. 2'36;, Shamshet Smgh & Anr. v. State of Pwyab, [1975] 1 S.C.R. 841; Sardarl Lalv. Union of India & Ors:, [1971] 3 S. C.R. 461; His Majesty the. Kmg v, Boston & Ors., [1923-24] 33 Commonwealth Law RepO~t 386 .... 82; Earsk1ne May Parflan1e11tary Practice 20 fd1t1Q1t. p. 149, referred to.

The s~bffiission that the acc~sed w~uld be a public servant within the ~~nint

·of the expression any person empowered by law to diiCharge any adjudicatOry ·fun ctiOns, incl. (3) of s.21. l.P.C. must be rejected. Participation ina debate on a motion of breach of privilege or fOr taking action for contempt of the House and voting therefore, it thereOn in a coastitutional - function discharged ·by the members and . cannot be said .that such adjudicatory functions' if it t:an be so styled, -constitutes adjudicatory function undertaken by M.L.A. a( empoWerd by law. [554 E-Fl

Special Ref No. 1of1964, [1965) 1 S.C.R. 413 at pages 490, 491 and 472; .. I.C. Golaknath v. State of Punajab, [1967] 2 s.c.R. 672'; Snpadangalavpru v. State

df Kera/a and Anr., [1973] Supp~ S.C.R. 1 referred to. .

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. The Slibmission that M.L.A. would be a public· servant within cl. (7) of &21 i.P.C. must be rejected: Cl. (7) takes within its ambi(;every person who holds any ·office by vir.ture .of which he is emPowered to place or keep any person· in confine ment'. Broadly ., stated the expression comprehends police and prison authorities or those. under a.n obliga~ion by law or by virtue of offiCe tO take into custody and keep iri Confinefnent an:Y person. To say that M.L .. A. by virtue of his Office. is p~rforin- ing 'Policing or prison officers' duties woulcj. be apart from doing violence to language lowerillt hiin · in status. Additionally cl.(7) does not speak of·any adjudi catory function. It appears to comprehend situatioO.s · where as preliminary to or an ·end_ product of an adjudicatory function in a criminal case, wh_ich inay-lead tci imposition of a prison sentence, and a· p~rson in exercise of the duty t~ be dischar&ed by him by virtue of his office places or keeps any p'erson iri confinement. [554 G'; 555 F-Hl

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~In vi~w ·of tlie finding that M.LA. is not a public servant under clauses (12)(a)~ (3) and (7) of s.21 l.P.C. and no sanction under s.6 _of the Prevention -of Conuptiori

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R. S. NAYAK I', A. R: ANTUIAY

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Act, 1947 is necessary to proseCute hitn, .it is not necessary to ascertain ~hich would be.the authority ·con1petent to sa.nction 'prosecution of M.L:A·. (557 C]

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rn the instant case, the allegations i1t the complaint afe ·all to the · effect 'that the aCcused misused or abused his office as Cgief Minister.for corrupt motives. By the tim·e · the Court was called upon to take cognizance df those· offences, the accused had ceased to hold ·the office of Chief Minister. The sanction to prosecute him . was granted by. the Governor of. Mahafashtra ·but this aspect is irrelevant for concluding that no sanction was necessary to prosecute him under S.6·on the offenCes alleged to have been Committed by the accused. Assnting .that as M.L.A. the ac:Cused wouid be a ptJ.blic servant under s.21, in ·the absence of any allegation that he misused or abused his office as M.L.A. that" aspect becomes immaterial. Further s.6 posf»lates existellce of a valid sanction .for proSeoution of a pubi.ic servant fo.r offene<aP Punis'hable ··und~r ss.161, 164, 165 J.P.C. 3.nd· s.5 9f the 1947 Act, if they are allege~ to hil-ve bfen committed by a pul?lic servant. Jn view of the finding that M.L.A. is not a public servant within .the ineaning of the expres~ sion in s.21 I.P.C., no sanction under s.6 is necessary to prosecute him for the offences alleged to ·have been committed by him. [556 G; 557 A~Bl

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CJi1MINAL APPELLATE JuRISDICTION: Criminal Appeal .iw. 356.

of' 1983

From the judgment and order dated 25-7-83 of the Special Judge,

Bombay in Spetial Case No. 24 of 1983. ·

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Transferred Ca?e No. 347 of 1983

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Transferred Case No. 348 o/ 1983

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Ram Jethmalani P.R. Vakil, Ms. Rani Jethmalani, Mukesh Jethma/ani, O.P. Malviya, Shailendra Bhardwaj and Harish Jagatlani for the appellant.

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Dr. L.M. Singhvi, ])a/veer /Jhandari, A.M. Singh~i, S.S. Parkar, H. Bhardwaj, u,N. Bhandari, H.M. Singh, Ranbir .Singh a~d S,G.' Hasnain for the respondent.

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A.shok Desai and Mrs. J. Wad for the petitioner in T.C. No. ·34g

G.

of 1983.

M.N. Shroff for s'tate of. Maharashtra

K. Parasararr, .Attorney ·General, Ms: A; SubhaSltini, · Subramanian, R.N. Puddar and C. V. Subba Rao for Union of India.

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SUPREME COURT REPO.RTS

[1984] 2 s.c.R.

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The Judgment ol' the Court was ci.eli~ered

· DESA.I, J: Respondent Abdul Rehman (\ntulay (hereillafter referred to as the accused) was the Chief Minister of th.e State of Malia rashtra from 1980 till' he submitted liis resignation 011 January 12, 1982, which became effective. from January 20, 1982. He thus ceased io hold · th.e office of. the Chief Minister from January 20, 1982 bui continues to be it sitting' member or"the Maharashtra L~gislative As&<mbly till today,

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As the contention"s canvassed before this Court are mainly ques tio.ns df law, facts at this stage having a peripheral relevance in the . course of discussion; it is unnecessary to set onl the prosecution case • . as disclosed in the complaint filed by. complainant Ramdas Shriniv.as Nayak (complainant for short) in detail save and except few a perti- . neni and relevant allegations. In the process the brief history of .the · litigation. may a!so be traced.

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The complainant moved the Governor of Maharashtra by his

application dated September I, 1981 requesting him to grant sanction .. . to prosecute the accused as required by Sec. 6 .of the Prevention of Corruption .Act, Hl47.(' 1947 Act' for short) 'for various offences alle·g ed to have been committed by the accused-~nd neal>ly set. out in the application. Conwlainartt then filed the first complaint in the Court; of Chief Metropolitan Magistrate, 28th Esplanade, Ijombay on Septem-" ber ll, I98! being Criminal Case No. 76 iMisc. of 1981 against the accused and others ·known and unknown collaborators alleging 'that · the accused in his capacity as Chief Minister a~d thtreby a public servant' within the meaning of Sec: 21 of the Indian Penal Code (IPC) has committed offences under Secs. 161; 165 IPC and Sec. 5 'of the · 1947 Act, Sec. 3S4 and Sec. 420 IPC read with Secs. 109 and 120-B IPC. Th\l complaint runs into 31 closely typed pages and carried the . .Jist of 37 witnesses. The learned Metropolitan Magistrate invited the ciiniplainant to satisfy him as to how the complaint for offences under Secs. i6I, 165 IPC and Sec. 5 of the 1947 Act is maintainable wiiliout ·a valid. sanction ~S. contemplated by Sec. 6 of 1947 Act a~d ultimately -held that in the absence of a valid sanction from the Governor of · Mahatashtra, the .complaint filed .. by the complaina~t for the afore. mentioned three offences was riot maintainable. The learned Metropo litan Magistrate accordingly held as per order dated October 6, 1981 . that the complaint was maintainable ohly for offences alleged to have been committed by the accused under Secs. 384 .aqd 420 read with · Secs. 109 and 120B of the IPC and directed that the case be fixed for

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R: s. NAYAK v. A. R. "ANTULAY (Desai, J.)

503

examining the' complainant as required by Sec. 200 of the _Cr. P.C. . The complainant questioned the correctness of this order in Special Criminal Application No. 1742 of 1981 filed in <he High Court of Judicature at Bombay.

In (he meantime, another development had taken place which may be briefly noticed. One. Shri P.B. Samant, who ·has also filed ·an identical complaint against ..the accused, along with several. others filed a Writ Petition No. ·1.165 of 1981 in the High Court of Judicature ·at Bombay challenging the method of distributicn uf ad hcc allotmfnt of cement in the State of Maharashtra -as being contrary to the ru)e of law and probity in public life. The accused was. the second respon dent in this petition, the first and third respondents being the" State of Maharash.tra and Union oflndia respectively. By ah exhaustive speak ing order dated September 23, 1981, a learned Sillg1e Judge of .the High Court granted rule nisi and made it returnable on November 23, 1981. The writ petition came up ·for hearing before another learned ·Single Judge who by his judgment dated Januar;y 12, 1982 made the rule ab'jOlute: Probably. as _a -sequef to this decision of the High Court, the .ac.cused tendered his resignation .as Chief; Minister· on _the same day"and when.the resignation was accep.ted he ceased to-hold the office of the Chief Minister with effect from January 20, 1982.

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Special.Criminal A~plication;No. 1942 ofl981 filed by the co~-.·. plainant against the order of the learned Chief Mttropolitw Mag.i- ' strate waS' dismissed by a. Division Bench of the High Court on April 12, 19&2. Not the accused but the State of Maharashtra preferred an appeal by special leave under Art. 136 of the Constitution against the decision of.the Division Bench of the High Court rejecting the special Thi~. Court rejected the·· application for criminal application. special _leave at· the threshold on July 28, 1982. (See State of Maha rashtra v. Ramdas Shrinivas. Nayilk ·and Others<ll ), Promptly, on the heels of the. judgment of this Court. the Governor of Maharashtra· on the same day granted the sanction under Sec. 6 of the 1947 Act to ·prosecute the accused in respect of specific charges set out in the order according sanction, Armed with this sanction, the complainant filed .. G.

·. a fresh complaint in the Court b( the Spedal Judge1 Bombay registered ·as Criminal Case.No, 24.of 1982against the accused.as Accused No." l and others knowri and unkno"'.JL In this complaint it is broadly alleged that the. accused who was· the Chief Minisier of the State of Ma.ha-

{I) (1982] 2 s.c.c. 463 ..

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(l 984] 2 s.C.R.

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tashtra between the period August 1980 to September 19.'l.J conceived· a scheme of aggranQ.isement involving obtaiPing o( funds from the members of the public and putting tbem. substantially under his own control for the disbursal of the funds so obtained. The complaint proceeded to refer to the setting up of various trusts and alleged that the corner-stone of the scheme involved.receipt by the accused of ille gal gratification other than legal remuneration as ~ motive or reward for doing or forebearing to do any official act, or for showing or fore bearing to show in t~e exercise of his official functions, favour or · disfavour to persons, or for rendering or attempting to render any service or· dis-service to such . persons who dealt with the State Governmen.t in general and with public serv;rnts who formed part of the Government. It was specifically alleged that the scheme devised by the accused was a .flagrant abuse of hi.s official posifion as Chkf Minister for obtaining control over funds which would be used. for purposes 'conducive to. the interest of the accused himself. The"cnm plainant proceeded to set out the abuse of office of Chief Minister by the accused citing various alleged ii1stances such as distribution of ad ·hoc cement contrary to law and the binding circulars, granting ]iguor licences as and by way of distribution of Government largesse, issuing no ·objection certificates for letting out premises by obtaining a price. for the same. The running thread through various allegations is that the accused by abusing or misusing his office of Chief Minister obtained or attempted to obtain gratification other than. legal remunerations a. ll]Otive or reward for doing or forebearing to do any official act as Chief Minister or for showing pr forebearing to show in th.e <ox.cercise of his official functions, favour or disfavour to persons etc. To this complaint, the order granting sanction to prosecute the accused made by the Governor of Maharashtra· was ltnnexed. and produced. After ·recording the vericfiation of the complainant, the learned Spec.ial Judge took cognizance of the offences and issued process by directing a bail able warrant to be issued in the sum of Rs.10,000 with one surety and · made it ,returnabl« on September 3, '1983. ·

· On the process being served the accused appeared and sought exemption from personal appearance which was granted for a day and· the case was adjourned to October 18, 1982 for \'ecording. the. evidence of the complainanfand.his witnessesfor the proserntion.

When the case was called out on October 18, 1982, an application was . moved on behalf of the accused inter alia contending that the ·Court of the learned special Judge had no jurisdiction i,n view of.the provision contained in Sec. 7 of the Criminal Law Amendment Act,

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R· s. NAYAK v. A· R· ANTULAY (Desai, J.)

. 505

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1952 E'l952 Act' for s]lort) and that no cognizance can be taken of. offences punishable under Secs. 161, 165 IPC and ~ec. 5 of the 1947 Act on. a private complaint. The case was at that time pending in the Court of the special Judge presided over by" one Shri P.S. Bhutta. _The learned special Judge by his order <lated October 20, 1982 rejected -both the contentions and-set down the case for November 29, 1982 ·for recording evidence of the p~osecutipn. The lrnrned special Judge made it abundantly clear that under no circumstance the case would be adjou;ned on the next. occasion and if any revision or appeal is intended to ·be filed against the order, the.learned counsel for the accu se_d should-give advance notice to theJearned counsel for fhe complai nant.

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The accused filed Criminal Revision Application No~ 51_0 of 1982 against the order of the learned special Judge dated October 20, i982 rejecting his application. 01) January 16, 1983, the Government . of Maharashtra 'issued a notification in exercise of the powers conferred by sub-sec. (2) of Sec. 7 of 1952· Act and in modification of the earlier ·Government Order dated· April 12, 1982, directing that in Greater Bombay on and after the date of the. notification the offences specified in sub,sec. (I) of sec. 6 of the 1947 Act which are investigatec'. by the Anti-Corruption Bureau of Police fo ·Greater Bombay, except special cases No. 14, 15 and 16 of 1977 and Special Case No. 31 of 1979 to 37 of 1979 (both inclusive) shall.continue to be tried by Shri R.B. Sulc. The net outcome of this notification was that Special Case No. 24 of 1982 pending in the. Court _of Special Judge Shri P.S. Bhuita would stand transferred to .the Court Df Shri R.B. Sule, Additional Special Judge for Greater Bombay. •.

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On a reference by the learned. Siugle Judge, a Division Bench of the Bombay High Court heard and dismissed .on March 7, 1983 · Criminal Revisio~ Application No. 510 of 1982 filed by the accused against the order of learned special Judge Shri P.S .. Hhutta dated Octo- ber 20, 1982. 'The Division Bench in ·terms held that the private com plaini was maintainable' and as the required no.tification has al~eady ~been issued, Shri R.B. Sule will have jurisdiction to try Special Case G No. ·24 of 1982. The learnecl trial Judge Shri R.B. Sule on receipt of the record of the case issued a notice on April 27, 1982 calling upon all parties to appear before him on Apri121, 1983. It appears .on July 8, 1783, two applications. were moved on behalf of the ai;cu~ed u;·ging the learned trial Judge; (i) to discharge the accused inte.r a/ia on the H ground that the charge was groundless and that even though the accused·

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SUPREME COURT REPORTS.

[1984] .2 S.C.R •.

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had· ceased to lie. the Chief Minister, on the date of taking cognizance .

. of the offences, he was a sitting member of the Maharashtra Legislative . Assembly and.as such a public servant and in that capacity a sanction . to prosecute him would have to be given by the Maharashtra Legisi~­ tive Assembly and the sanction granted by the Go Vernor would. not be valid in this behalf. The second petition· requested·. the .learned · ·Judge to postopone the case tiII the petltion for sprc'ialleave fired by ·

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· . the accused against the decision. of the DiviSicn· Bei1ch of the High · .. Court holding that the private ccmplaint was rraintai1,ab!e is dispo.scd ·of. Both thes.e applications came up for hearing before Shri RB.. SUic, who by his order dated July 25, 1783 upheld the contention of .the accused that M.L.A. was ·a public servant within the meaning of the expression in Sec: 21 (12) (a) lPC and.that unles.s a sanction to prosernte him by the. authority. competent to remove him from his offiGe as M.L.A. was.obtained which in the opinion of the learned Special Judge was Maharashtra Legislative Assembly, the accused is entitled to be discharged. So saying, the learned Judge discharged the accused. : The complainant Jiled a petition for special leave io appeal No. l 850 . of 1983 and a Writ Petition (Cr!.) No. 145 of i983 against the deciskn of the. learned special Judge. Both these matters came up before this Court on August 3, 1983 when the matters were adjuorned to August ' 10, 1983 to enable the petitioner, original complainant to fik a criminal revision application against the order ·or the learned special Judge in · the High Court. Accordingly, the coinplainant filed Criminal Revi siOn.Application No. 354 of 1983 in the ·High Court against the order of learned special Judge Shri R.B. Sule. This. Couri ultimately granted speciaqeave to appeal as also ·ruie nisi in the writ petition. By ~n order: 'made by this Court, the criminal revision application filed by the peti~ . tioner stands transferred to this Court.

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.It may be mentioned that .ihis Cour·t has granted special leave .

to the accused· against the decision of the Division Bench of the Bombay High Courtholding that.a private' complaint is maintainable,etc. Crimi- · nal Appeal No. 247of1983 arising out of the said special leave petition is being heard along with this matter but that \Vill be dealt with separa~ ~

While discharging the accused, the learned special Judge held that the. material date for deciding the applicability ,of Sec .. 6 of the 194i Act is the date on which the court is asked to ·take cognizance it was held that even though 1he of the offence. Proceeding further accused had ceased to hold the office of the Chief.Minister on the date

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507

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on which cognizance 'was taken by the learned special Judge, Shri Bhutta, yet ·on. that date 'he was a sitting M.L.A: and was therefore, · a public servant wit.bin the meaning of the expresS!on in Sec. 21 (12)(a) in a~much as the M.L.A. is a person in the pay of the Government or at any rate he is remunerated by .fees for ·performance of public duty . by the Government .and therefore, he is a public servant.. As a corol. · . lary, the learne~ Judge held that as· on the da.te. of taking cognizance of the offence the accus~d was a public servant, he could not be prose, cuted· without a valid sanction as contemplated .by Sec. 6 of ihe )947 ..• Act. The learned ·Judge further held that the M.L.A.,holds an office . .and he can· be removed from that office .by the Legislative Assembly because · the latter has the, power to expel a member which would · amount to . removal from· office. The learned Judge further held that as there was no sanction by the Maliarashtra LegiSJative Assembly to prosecuteo the accused and as the Governor\had no power· to san- · ... ction prosecution of the accused in his.capacity as M.L.A.; the accused is entitied to be discharged forthe offences under Secs. 161, 165,' J20•B, . 109 IPC and Sec. 5 of the. 1947 Act for walit of a valid sanction for prosecution, and in respect of the other otfence·s, the ac~uscd is entitled D to be discharged on the. ground· that, the court of the special Judge had no jurisdiction to try the. accused for those offences.' In respect •of those other offences, the learned Judge directed the complaint to'.be returned to . the complainant for presenting i~ to the proper court. Jt may be mentioned that by. a .commoh order in Special Case No. 3 of 1983 instituted upon the complaint of Mr. P,B. Samant, ·t.he accused · E , was discharged.

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Sec. 21 IPC defines a 'Public Servant'. The releva.nt clauses may

be .extracted as under:

'public servant' denote ,a person· falling ''21. The words unde, rany of the descriptions hereinafter following, namely:~

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Third-~very Judge including. 'a~y person · empowerd . by law to discharge, whether.by .himselfor as' a member of any' body of persons, any adjudicatory functions.

·sev~nth: Every person who hold; any offi~e by virtue of whi~h he is· empowerd to place or keep any person in copfininent.

Twelfth-,-:Every person~·

{a) in the service or pay.ofthe Go~ernment or rem~~erated

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SUPREME COURT REPORTS

· (1984] 2 S.C.R.

by fees or commission for tlie performance of any public duty by the Government· ·

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in the service or Pay of a local authority, a corpo ration established· by or under a Central, Provin cial or State Act or a Government Company as defined in Se.ction6J7 of the Companies Act, 1956.

Explanation I: Persons falling under any of the atove descriptions are public senmnts, whether appointed by the Government or not".

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tral Government or Jhe Government of a Siate: Sec. 14 defines the expression, 'servant of Government' to denote any officer qr servant continued, appointed or empJOYed in lndia by or under the authority of Government.

' Sec·. 19 defines the word '!udge'·as under.:

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is officially designafrd as a J'udge, but also everyperson

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Who i.s empowered by law to gi\'e, in any legal pro ceeding, civil or criminal; a definitive judgment, or a judg- . · men! which if not appealed against, 'would be definitive, ma judgment which, if confirmed by some other au.th ority, would be definitive, or who is· one of a body of · persons, which body of persons 1s empowerd by law . to give such a judgment." ..

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Sec. 5 of the 1947 Act defines the offence of criminal misconduct and a public servant who commits an offence of criminal misconduct is liable to be punished with imprisonment for a term which sh.all not . be less than one year but which may extend to seven years anc1, shall also be liable to fine.

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R. s. NAYAK v, A. R. ANTULAY (Desai, ·J.)

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cution for offences punishable under Sec. 161, 164, 165 JPC and Sec. 5 · A of the 1947 Act. It reads as under:

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,;4(1) No court shall take.cognizance of ~n o!fence punishable under Section 161 or S~ction 165 of the lhdian . Penal Code, or under sub~sectipn (2) of Section 5 of this Act, alleged "to have been com!l'itted by a public servant, except with the previous sanctio~,

(a)

in the case of a person who·is employed in connec tion with affairs of the Union· and .is not remova ble from his office save by or' with the sanction o.f the Central C'overnment,

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the case of a person who is. employed in 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,

in the case of ariy other person, of the"lluthorit)' competent to remove him from his office. .

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(2) Where for any reason whatsoeve any doubt arises whether the previous sanction as rreqliired under sub-sectio~{l) should be given by the Central or State Government or any other auihority, such.sanction shall be given by that Government or. authority ·which would . have been competent to remove the publi_c servant from his office at the ·time when the offence was alleged to have· been commiited''.

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With a view to eradicating the. evil of bribery and corruption, the Goveniment of India set up a Committee to make recommendations. for the iqiprovement of the laws 'relating to 'bribery and corruption under the Chairmanship of Dr. Bakshi Tek Chand. The recommen~.a- tions of the Committee led to the enactment of the Criminal Law· G Amendment Act, 1952. By the 1952 Act, power wa~ c~nferred on the St~te Government to appoint specia!Judges as may be necessary for such area or areas as may be specified in the. notification to try the following offences· namely; offences punishable ur.der Sections 16], 162, 163, 164, 165 and 165A IPC and Sec. 5 ofthe 1947 Act and any H conspiracy to commit or any attempt to commit or 'any .abetment of

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any ~f.the -offences hetei~above mentioned. Sec.-. 7 conferred exclusive· jurisdiction on t~e special Judges appointed 1,mder Sec. 6. Sub-sec. (2) of Se,c. 7 provides for.specific territorial j~risdiction of a special Judge. · $ub-sec~(3) conferred power on the special Ju~ge ·also to fry any offence · . other .than an i;>ffeilce specified in Set. 6 with which the accused may, urider the Code of Criminal Procedure, 1898, be charged at the same triaL Sec. 8 ·prescribed the procedure to be'follwed by the special Judge in the trial of the offences. The Court of special Judge was ·deemed'to be a Court of Sessions trying cases without a jury within" the local li,mits of the jurisdiction_ of the Higli Court for the purposes· of .Chapter XXX! and XXX!I of the Code of Criminal Procedure as . proviJ.ed by Sec: 9.

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. The appellant, the original complainan( contends that the learned special.Judge was in ·error in holding that M:L.A. i; a public servant withi~ the meaning of the expression under Sec. 21(12)(a). The second submission was that _if the first•question is answerd in the affirmative,' . it would. be necessary to exa111i'ne whether a sanction .as (;~~template~ .. by Sec._ 6 is necessary. lf the ai1swer to the second :question is. in the • a"ifirmative 'it would be necessary to identify the sanctioning '1Uthority.'

The broad sweep of the-argument was that the complainant in his ~oni-" plaint has alleged that the accused abused his office of Chief Minister and not his office, i_f any, as M.L.A. and therefore, eveh· if on the date . oi' taking cogniz~nce of the offence the accused was M.L.A., nonethe- .

less no sanction to prosecute him ·is necessa.ry as envisaged by Sec. 6"\ .. of the ·1947 Act. It was. u_rged tl1at as the al1eg1ttion against the accu-sed. in the complaint isthat he abused or misused.his office as ChiefMini ster anc! as by the time the complai,nt was filed. and cognizance· was · .taken, he had ceased to hold· the office of the Chief Minister nq san- · · c\ion under . Sec. 6 .was necessary to prosecute him for the offences alleged to have been·committed by him when.the accused was admit- tedly- a public serva~t in.his capacity :is Chief Minister.

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· (h behalf~f the accused, 'it was contended th~t not only the accused would be.a public servant asfaJlihg within. the'mea·ning of the · expression in Sec. 21 (12)(a) but he would also be a public servant within the contemplation of-claus~s (3)and (7) of Sec. 21. The next limb of the argu·mentwas t_hat if an· accused hold plurality·of offices. ~ach of which confers on him the status of a public servant and even if it i~ alleged that ~e has abused or misused one office as ;·public servant, notwithstanding, the fact that there no allegation of abuse or misuse . of other. office held as public servant, sanction of each authority com-

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R· s. NAYAK v. A. R. ANTr..fLAY(Desai, J.)

511

petent to remove·him from eaG]1 of the of!kes would be a sine qua non A · under Sec .. "6. before a valid ,prosecution can l:Je launched. against the accused.

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On th.ese«ival contentions some vita!

and s.ome note> vital points arise for consideration, some ea'sy cir answer and soine' none-' tooeasy. ·For their scientific and formulated :

logical . treatment

they .may be B

(a) .. What is the relevant date with reference ,to which a valid sanction is a pre-requisite for the prosectution of a public . ·servant for offences enumen,ted in Sec: .6 of the 1947 Act?

(b) If theaccused'holds plurali xofoffices occupyingeach of whic'.1 makes him a public servant, ·is sanction of each . one of the c-0mpetent authorities entitled to remove hii:J1 from each· one of the offices held b~ him ncessary 'and · if anyone of the competent authorities fails. or declines • to grant· sanction~ .is the Court precluded or prohibited· from . takiog cognizance of the offence with . which the public servant. is charged. ?

(c)

Is it implicii in Sec. 6•or tlie 1947 Act ihat sanction of 'that competent authority alone is necessary, which is entitled to remove the public servant from the office which is alleged to have peen abused for mishsed for c;Orrupt· motives ?

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(d) Js M.L.A. a public servant. within the meaning of'the ·

expres sion in Sec. 21(12)(a) !PC.?

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Is M.L.A. a public servant within the meaning of the' expression in Sec. 21(3) and Sec. 21(7) ICP ·?

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(f) Ts sanction as contemplated by Sec. '6 .ef the . necessary for prosecution of M.L.A: ?

1947 Act

(g)

If the answer to (f) 'is in the affirmative, Sanctioning . Authority competent . to remove M.L.A. · · from the office of Member of the Legislative Assembly?· ·

is the

.v.hilh

Re. (a): The 1947 Act was enacted, as its long title shows, to· make m'ore effectiv~ provision for the prevention of bribery and corrup- H tion., Indisputably, iherefore, the provisions of the Act mmt receive

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SUPREME COURT REPORTS

[1984] 2 SC.R.

stich constrliction at the hands of the coui·t us \vculd <idvanc('htc object and purpose umblying the Aci and at any.rn'te not def,at it. If the wor~.1 of the statute are clear and unambiguous, it is the plaines\ • · · d•.tly of the court to give effect to the- natural mct>ning of the words used Othe provisicn. The question of construction arises only in the event of an ambiguity or the plai'n meaning of the words used in the statute would be self-defeating. The court is entitled to· ascertain the intention of ·the legislature to remove .the ambiguity by ·construing the provision of the statute as a whole keeping in view what was the mi,. chi bf When _the staru't~- _w~s ena_cted anC( to !·~1no:e \VJ1iel~ :-he legislature enacted the statute. This rule of construction rs so umversally accep- ·-i · ted that it need not be supported by precedents. Adopting· this ru\C , - ·of construction, 'vhcnev.er a question of coristruction _ari~es upon ambiguity or where two views are possible of a provision, it would be the duty of the court t-0 adopt that construction which would advance

th·e object underlying the.Act namely, to make effective provi.sion for *

ihe prevention of bribery and corruption and at any rate not defeat it ..

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Sedion 6 bars tl:e court from ·taking cocnizance of the offences·· therein enumeratecl. al!egeJ to have been ~oim;itt~d b~ " public cer vant e~cept with the previou.s sanction of the .co1npctc1lt authority empowered to g.rant t,he requisite sanction, Sec. 8 of l 952 Act pres cribes procec\urc and powers of special Judge cnipowerecl. to try offences· -t set out ih Sec. 6 of 1947 Act. Construction of Sec. 8 has b<'en a subject or vigorous d<:ba:..? in the cognate appeal. Jn this apped we will prccee_d .... on the assu1npt1on that a spect<:.I Judge can take cognizance of offences he.is co1npetent to try 01T a private coniplaint. Sec. 6 creatE~ a bc:·r t.o. the ~ourt from ta.king cogniz~nce Cf offences -therein ('num fratcd cx:cept with-the. previous sanction of the authority set out ifi \··h:usf (a), (b) & (c) of subcSec. (!). The 0bject .underlying si;ch pro•ision" w;:s 'j, tu save the public servant from the harassment of frivolous or unSJ,1h- stantiated al!egcitions. The policy underlying Sec. 6 vn_d sin1ilar · ·sections, is thit there ~hould not b~ unneccs.'aty haras<>nlent_ cf pµblic servant. (See C.R. }lansi v. State of' Maharashtra'" ). Exhlrnie tJ- rs o.f a valid sanctfOn is· a pre-requisite ~o thC tltking cf cOgniza~1ce cf the en\nnerated offences alleged to ha.ve been com milled by a public 'servant. The bar is to the taking of cognizance of offence by the court. Therefore, ·when the · offe1'1.ces, it must enciure .whether there _is a valid sanction to proseCUte 1 the public servant for the offence alleged to have_ been rnnimitted by i .

,ourt·is called upon to take cognizances of such.,,.

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R. ~· NAYAK v. A. R; ANTULAY. (Desai, J.)

. 513

him. as pttblic servant. Undoubtedly, the <!Cc.used must be • public servant when he is alleged to have committed the offence of which he .is .accused because Sections 161, 164, 165 !PC and .. Sec. 5(2) of the J 947 Act clearly spell out that 1$le' off< nccs therein r.efinerl, rnn be com mi.tted by a public servant. . If it is contemplatded to prosecute Pl!blic s'fv;rnt wfo has committed such off.:nces, when the court is called upon to t~ke cognizance of the off~nce, a sanction ought to be avail-· able oti-i ~r;v:se the court WJu 1d· have no juris0.iction to take !bgniZauce ·of the offence. A trial without a valic( sancticn wh.ere one is necessary under Sec. 6 has been held to be a· trial without jurisdiction by the COl!rL (See. R.R. Chari v: State o/U.P.'". and S,N. /Jose v. State of /3ihar<21) Jn Mohd. Iqbal Al,med v. State of.A..P. <ai, it ;yas held that a· tri~d. Withollt. a sanction ·r~nders the proceedings ab initio · vbic\, But , the·courtis the terminus a quofcr a valid sanction is the time when called upon to ·tahe coignizance of the offence. If therefore, 'whe~ the offen,e is alleged to hove been committee'., th.e accu~ed. was a public servant but by the time the court is called upon to take cognizar.ce of the offence committed by him as public servant, he has ceased to be . . public servant,.no sanction would be necessary for taking cognizance of the offence against him. This ·approach is in accord with the polic~ underlying.Sec. 6 in that a public servant is not to be exposed to harss mont of a frivolous or. speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary coroJ:ary, if the accused has ceased to b~ a ~ublic servant at the tiiv.e when the court is called upon to take <ogni· Lance of the offence alieged to have been committed .by h]m as public servant, Sec. 6 iS. not. attracted. This ·aspect: is not more res integra. 111 S.A. Venkataraman v. The State"'

this Court held .as under:

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'' ~n or opinion, j~ givi1~g Cffect to the. ordinary meariing of the \Vvr,\s used itl s. 6. of the Ac;, the conclusion is inevitable thatat t11e · i ne ,l CJ-;ir~ is .tsked to take cogtlizance not only the offence must have been committed by a pub:ic servant but the person ~1.:cused. is still a pub'.ic servant. re1n·ovab:e ·rrOm his uffice by a competent· authority ·before the provisions of s. 6 can apply. In the present appeals, admittedly, the appellants ·had cease to be 'public servants alleged to have be~n commited by them .15 pJblic servants .. Accordingly, the pi'oyisions of s.6 of the Act

(I) [19631 I S.C.R.. 121. (2) [1968f 3 S.C.R. 561. (]) [197912 S:C.R. 1007. (4) [1958] S.C.R. 104 at 1052

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[1984] 2 s.c.R.

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__ did not applv and the prosecution against.them was not viiiated by the. Jack of a previ?us -s~nction by a coi:npetent authority". _ -

· And this view- has been comillJ.ently folfmved i-n- C.R. j)ansi's _

case and KS. Dliarinadatan v·. Centrd7 Governmenl & Ors.iil _ Tt there-- - ·fore appears we!l-settled that the relevant date with refer.,.e to which- ' a valid san<'tioh is sine qua nmi- for taking cognizance of an offence comrn_it!jfl by a ·public servant as required b~ Sec. 6 is the date on which - :the court is called upon to take cognizance of the offence of which-he is accused.

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the accused tendered ·resig1iation of his office' as-Chief Minister and ceoscd to hold the office of Chief Minister with effect from Ja;iuary 20,f!982. The complaint from which - the present a ppcal arises and which was registered as Criminal Case No. 24/82 appears lo have been .fi!e<i on August 9, J9S2 and _ihe cogni~d'hce. was taken by the - learned Magisttatc _01i th same day_ -It unquestionably transpires that loJ1g b;fore the d'lte on .\Y~iich the cogniza1~ce was~aken bY the Jcarn('d special Judge, "the accu>cd had ceased to hold the office of the Chief --Minister and as such had ceased' t_o be a pubii-c servant. In other words; · ·hC was not.a p1.l~J!ic s~rvan.t in hi_s capacity ::is Chief Minister 01i Augus~ -9. 1982 when the court t~ok cognizance o( the offence agrrihst -him. · A fortiori no sanction as conte1J1plateci_ by Sec, 6 was necessary befNe cognizance of the offence co.uld be taken against the-accused for offe11- - E ~ ces alleged to have been .comrn]tted in his former capaciJy as public _servant_ Re: (b) and (e): It was strenuously c~ntended that if the - accused ha"s held or holds ,, plurality of offices occupying each one - of which' makes him a public servant, sanction of each one of the-_ remove him from each one of the compet~nt authorities entitled to .offioes held by him, would_ be necessary and if anyone df the competent· authorities_ fails or declines to grant ·sanction. the court is precluded or prohibited ·fame taking cognizai1ce __ of the -offence with the public _SC\Vant is charged. This submission was -sought lo be repelled urging that it is implicit in Sec. 6. that sanction of that authority alone is . ~. necessiry \vh-iCh·· is c·orppC.tent to -remOye the pUbliC servan1 :from the· ,

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(1) [t979J 3 s.c:R. 832

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R. s.' NAY AK v. A.' R. ANTULAY (Desai. J.)

. 515

to have been co.mmitted by public servant except offence alleged with ihe: previous snaction of the authorty competent to remove· h1 m from his office..

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·In order·fo appre~iaie the rival contentions ~e fact situaticn ,rclc~ .vant to thetopiC under discussion may· be noti~ed .. ~ta genera.I .election held in 1980, accused was elected ·as Member of the-Legislal.ive Ashfmh· ly of Maharashtra'· State fom Shrivardhan Assembly Constitutency. He was appointed as Chief Minister. of Maharashtra State, and he was tiolding tha·t office at the time he is alleged to have ·committe.d the offence·s ·set out in the complaint filed. against .him: He tendered his resignatio!1 of ttie office of the ChiefMin.ister and ceased to hold that .offioe with effect from January 20; 1.982. ·However, he coninued to retain his seat as M.L.A. The contenion is that as M.t.A., he was a publiC servant •. a si1bmission seriously controverted, which we would pre.sently examine and.that he was such public servant even on the date . on which the court took cognizane of the offences £et out.in the com·

plaint without a v,;lid sanction and therefore the court had no jurisdic· . · ti on to take cognizance of the offences. Jn support of- the suinbission it was urged.that if the polic;y undelying Sec .. 6 and similar provisions ,.

. iike Sec. 197 Cr. P.C. was to spare the harnssmentto the public servant consequent upon !aunchipg of frivolous or speculative prosecutions: · > the snie would be defeated if it is held that the sanction to prosecute is necessaxy from an authority competent to remove the public servant from the office which he is alleged to have misused or abused. Proceed·. . · "Y1ng along this· line it was urged that even if the accused has c~ased 'to

-· pe ·a public servant in :one capacity by ceasing to hold the. office which

he 'is alleged to have misused or abused yet if be continued to be a .public servant in an"ther capacity, the authority competent to remove .II him from the latter office ivould have to. decide whether the prosecuticn is frivolous or speculative and in larger publie interest. to tl1wart it by declining to grant the sanction .. It was also urged that if a public servant has to ·discharge' ·some public duty and perform some p'ublic functions and .he is made to cool his Jfeels in law courts, public interest would suffer by keeping him away from his public duty and therefore, · t.o advance the object underlying Sec, ·6, the couit must hold· that if G . the public servant who i.s being prosecuted holds more than one public .... office occupying each one of which makes him public servants,' a san· ction to J:lrosecute of each competent authority entitled fo remove. him from each office is necessitus before taking cognizance of offences· against him .. It was uri:ed that this approach would advarice. and

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SUPREME COURT REPORTS

[J 984] 2 S.C.R.

A.

buttress the p:ilicy underlying Sec. 6 and the · contxary view would 'defeat the same.'

. corrupt motives. Therefore, the corrupt conduct

Offences prescribed in Sec: 161, 164 and 165. JpC ancl Sec. 5 of the 1947 Act have au intimate and inseparable relation with the office.· of a public servant. -\ public servant occupies office which rena.ers him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an indivi dual ·person. In a so_ciely governed by ru:e of law power is conferred. on offioe or acquired by statutory status and the individual occupying the office or on whom status is conferred enj:iys the power of office - or power flowing from the status. The holder of tl'e office alone would have' opportunity to abuse or misuse the office. These sections co.dify a well-recognised truism that power chas the tendency to corrupt. It is the holding of the. office which gives an opportunity to use it fN is drectly_ attr;bu table and flows from the power conferred ori the office. This interrel&. tion· ahd interdeperr(\ence betwet;n individ;.ral and the office he holds is substantial and not serverable_ Each of the thrc_e clauess · nf sub-s. (I) of Sec. 6 ·uses the expression 'Office' and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Sec. 6 requirc.s a sanction before. tak;ng cognii;nce of offences committed by public servant. The offence cu!d be c9m mitted by the public servant by misusing or abusing the power oCoffice and it is from that office, the authority must be competent to remove· him. so as to be entitled to grant sanction. The. removal would bring about ceasation of interrelation between the office and abtise by the holder of the office. Tlie link between pOl)'er with opportunity to abuse. I and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than local remuneration for doing or forebearing to do an official act (Sec. 161 IPC) or-as a public servant abets offences punishable under Secs. 161and163 (Sec. 164 IPC) or as public servant obtains a valuable t_hing without consideration from person concerned in any p'toceeding or business transacted by such public servant_ (Sec. 165 !PC) or commits. criminal misconduct as defined in Sec; 5 of the 1947 Act, it is implicihn the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression 'offices' in the three sub-clauses of Sec. 6(1) would clearly denote that office which the public servant misµ;ed o.r abused for corrupt motives for which he is to be prosecuted and in respect ··of which' a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he hu> abustci .

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R. s. NAYAK v. A. R. A1'TULAY (Desa.;. J.)

517

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This interrelation between te office and its abuse ·if scr11-cd wou 1d render s'ec. 6 devoid of any meaning. An this interrelation clearly .rrovideS a Clue to the understandiilg,-cf the: Pre vi:ic n in ~~r. 6 ~rovic!;i~~g for sanction by a competent authonty who WCU!d be abte to Judge tl,e action of the public servant before removing the bar, by fr«ntir.g sanction,, to th~ taking of the cognizanr.:e ofDffences by the .court agait~st the puhlic se~vant. Therefo~e_. 1.t urlquesticna~!y fellows -t-ha~ 1h~ sane lion to_ prosecute can be given by an .'luthcnty cpm.petcnt to 1emove the public servant from the office which he has mJSsused or abused because that authority alone would be able to know whether there h·as been a mil;use or abuse of'the office by the public servant and.not some rank outsider. By a catena of decisions, it has been held that the authority entiiled to grant sanction rn11st apply its mind to the facts of the case,. evidence collected.and other incidental facts before· accord ing sanction. A grant of sanction is not an idle fo1mality but a solemn and sacrosanct act which remo:xes the umbrella of protection of govern- 1nent servants against frivolous proseciltions and .the aforesaid re-quire-· ments must therefore, be strictly compli<ti with before any prosecution _c9uld be launched aganst ptrblic servants. (See Mohd. Jqba/ A.hnwd v. State oJ'Andhra Pradesh). The Legislature advisedly.conferred pcwcr ·. on the authcrity competent to remove the public servant frcm the office to grant sanction for the' obvious reason that that authority alcrnc w,ould be ab1e, when facts and evidence are placed before him, .to judge whether a serious offence is committed or the prosecution is either. frivolous or speculative: TLat authority alone would te compe tent to judge whether on the facts alleged, there has been mi abuse or misuse of office held by the public servant. That authority. would te in a ·position to know what.was the power c01iferred en the office which the public servant hold, how that power could be e.busecl. for'corrurii motive and whether prima facie it has been so done. That competen_L authority alone would know the nature and functions ·discharged by the public servant holding the offiSe e.nd \vh'cther the same h"s been abused or misused. ]t is the vertical hicr;irchy between the ·auti10rity. competent to remove the public s~rvant from that office and the nature of tile office hold by the public servant against whom sanction is. ·sought which would indicate a hierarchy and which would therdore; permit inference of knowledge about 'the functfons and duties of the office and its misuse or abuse bv the public•servant. That is why the legislature clearly provided that that authority alo1;e would be compe tent to grant sanction which is entitled to rerrovc the public sen mt against whom sanctio"r1 is sought froin the office ..

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S18

SUPREME COURT.REPORTS .

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[1984] 2 s.c.R.

·.Now if the public servant holds two offi~es ind he is accused ·of havi.1g. abused' one and froin which lie i; rell1ovcd but continues. to ?old the other which is neither alleged to have been used nor abused, is a san.,tion .of the authority competent to remove him fr~m ·the office which is neither alleged or shown to have be~~ ahused or misused _necessary·?_ The· sub1ni~sion is_ that if the ·harassn1ent ,uf the public ser~ vant by a frivolous prosecution and criminal waste of his time in law courts keeping him away fr 0m discharging .p.ublic duly, ate the obj~cts underlying Sec. 6, the same would be defeated if .it is held tha·t the· sanction of the. latter authority Is not necessary. The submissio;1 .does · ' ·not commend. to use. We fail to see h.ow 'the competent authority entitled io remove the public servant from an office which is neither aUeged to have been .used or abused would be able to ·decide wehether · the prosecution is frivolous or tendentious. An illu>tratio;1 was posed to th~ learned counsel that a Minister. ivho is indesputably a pttblic. servant gr<ased his palms. by abusing his olfr:e as l\1inister, and then ceased to hold the oflke before the court was called upon to take cogni zance of the offence against him ·and therefore, sanction as contein-. . plated' by Sef. 6 would not be' necessary; bui if after committing the off~nce and before the. date· of taking of cognizance of the· offence, he was elected. as ;1 MuniCipal President .in which capacity he was a public servant under the relevant Mtinicipal iaw, an<I was holding that· office on .the date on· which court proce~ded to take cognizance of the. offence committed by him as a Minister, would a sanction be.netessary ·. and that too of that authority competent to remove hin.i froni the.office of the Municipal President. The answer was in affirmative. But .the very iHustration wo.uld show that such. cannot be the law. Such an interpretation of Sec. 6 would render it as a shield .l•i en unscrupulous · public ·servant. Someone interested in protecting,ri:tay shift' hiin from

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·o.rie office of public servant ·to another. and thereby defeat the process . of iaw. One .can legitimately envisage a situation wherein a person. · may hold a dozen different offices; each .one clotlung him with the . .. status of a public servant under Sec. 21 rrc and even· if he has ab.used •. only one office for which either there is a valid sai1ction to prosecute him or he has ceased to. hold that offic!: by the 'time court was called G · . upon to take cognizance, yet oJL this assumption, sanctiOn of 11 different ·competent autl1orities each of which w~s entitled lo remove him from H different publie office~ would be necessary before the court can take cognizance· of the. offence .comrnitted by such public servant, while abusing one office whkh he may have ceased to.hold. Such an inter-_ .. pretation in contrary to all canons of construct10n and leads to an_, absurd · and. product which of necessity must .be avoided. Legislation

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. R. s. NAYAK v. A. R. ANTULAY (Desai, J.).: .

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(See Dmis & Sons lt.i. v. ·"·tkini)ui

. must at all costs be int~rpreted in ·such a way t]'1t it woulc\"not.operate · as a rougue's charter.

. . Support was sought to be dra1~n for the subrr,ission from the decision of the Andhra Pradesh High Court in Air Commodore Kai/ash Ch;ird v. The State (S.P.B. Hyderabad)< 2> and the affirn]ance of that decision by this Court in The State (S.P,B.Hyderabad) v. Air Commo- •

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. . dare Kai/ash Chand.<•> fn that case accused Kailash {;hand was· a n\em ber 0°ft11' Indian Air Force having entered the service on 17th November 1941. H~·rctircd from the service·.01i 15th June, 1965, but was re-employ ed for a period of 2 years with e.ffcctfrom 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, 1.970 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 Sec. 5(2) 0f the Prever,lion of Corruption Act, 1947 during the period March 29, 1965 to March 16, 1967. (..contention was raised on behalf of the accused that the court could not take cognizance or'the offence in the abse_nce of a val'd sanc tion of the authority competent to "remove him·from the office held by him as a public servant. The lea·rned special" Judge negatived the · In the revision petition filed by the accused in the the contentiori. High Court, the learned Single J_udge heki 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 Auxifiary Air Force,. 19.52 and the rules m~de there under. Accordingly,. it was held that a sanction to prosecute him was necessary and in the a.bsence of which .the. court couldt·not tahe .cognizance. of the offences and. the prose cution was quaslied. In the appe<il by .certificate, this ·Court upheld . the decision of the High Court. This Court held following the deci· . 1 · sio.n .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, J. Sec, 6 1s. not attracted. Thereafter (he court proceeded to examine whether the accusecl was a public servant on the date when the •court took cognizance of the offence ·and concluded that once the accused was transferred to tlie Auxiiiary Air Force, he retained his character as a public-servant because he was required to undergo training and

(I) [1977] Imperial Court Reports, 66 '. · (2) (1973) II An~hra Weekly Report 263 OJ [l9SOJ 2 s.c.R. 697.

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SUPREME COURT REPORTS

(1984] 2 S.C.R.

to be called up for service ns and .when required. The court further held that as such the accused was"( public serw;nt as an active member of the Indian Air Force a11d a sanction to prosecute him under Sec. 6. was necessary. This decision is of no assistance fer tl~e obvious reason that nowhere it was contended before the court, which office was alleged to have been abu_sed bv the accused ~nd whether the hvo offices were separate ~nd distinct. It is not !lk1de clear whether the a.ccused continued· to hold the office which was·alleged to have been a bused or . misused even at the time of takit1g cognizance. of the offen~e. But that. could not be so because the service of the· accused was terminated on April !; 1968 while the cognizan_ce 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, nqt invited· to consider the contentiOn canvassed before us. Nor was the court informed specificatl;' whether the subse ·quent office held by the accusec' in that case was the same from which his service was terminated ·meaning lhereb). he was re-employed to • the same office. The ~cision appears to proceed on tbe facts of the case/We.would, however, like to make it abundantly clear that if the two pecisons 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 corrqpt motives, but on the date of taking cogni zance 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 t~ have misused . or abused for corrupt motives, yet the sanction of authority competent to reniove him !rom . such latter office would be necessary before taking cognizance of the offence alleged to have been com;..,itted by the. public servant while holding an office which he. is alleged to have abused oI misused and which he has ceased to hold, the deci~ions in our opinion, dQ notlay down the·co.rrect law and cannot be accepted as·making a correct in terpretatfon of Sec. 6.

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Ther~fore, upon a tlue construction of Sec. 6, it is implicit therein ,

that sanction of that competent authority aioue would be necessary whfoh 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 agamst him.

· In the complaint fited against the accused it _has been rcpeatedty alleged that the accused as Chief Minister of Maharashtra State accep fed gratification other. than legal remuneration from vanous sources

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R. s .. NAYAK v. A. R. ANTuLAY°(Desai, l)

521

and thut°co·~~itted variou; offences, set out in the complaint. No' where, not eyen by a whispe!·· it is alleged that the accused has misus<d or abused for corrupt motives his office as M.L.A. Therefore, it. is. crystal· clear thatthe complaint fi.]ed against the accused charged him • with cri.minal abuse or misuse of onlv his office as Chief Minister. By. the time, the court was callei. upon to take cognizance of the offences, · . so alleged in the cornplai;1t, the accused had cea.sed 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· Cf!ief Minister of Ma_harashtra State. 'The appeal can succeed on this short ground. · However, as• the. real bone of contention between the parties was whe- ther as M.L.A. the accused was a public servant and the confontion was canvassed at some length, we propose to deal with the same. ·

The learned special Judge held that the accused .as M.L.A. is a public servant because he .is in the ray of the Government or he is re~unerated by fees for the performan~c of public duty by the Govern ment. The learned special.Judge simultaneously rejected the conten tion canvasse~. on behalf of the accused that the accused is a public · .servant because .he is a person empowered by law to discl;arge as a member of a body of persons adjudicatory functions as contemplated by the Third cla.use of Sec. 21.

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Re: (d): We wou:d first examine the correctness or otherwise E

of' the finding of the the learned ·special Judge whether the nccu.ed ni M.L.A. w.s in the pay of the Governmment or was remunerated by fees for the performance of any public duty by the. Government so as to be clothed. with the status of a public servant within the .meaning of cl. .(12)(a) .of Sec. 21 IPC. Cl. (12)(a) provides-that every person in the service or pay of the Government or remunerated by fees or com- mission. for the performance of any public duty by the Government would be a. public servant. The three limbs of cl. (12)(a). according. to the learned special Judge are:. ·

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(i) Every person in the service· of the Government; or

(ii) Every person in the pay of the Goven\ment; or

(iii) Every person reinunerated byfees or commission for the

performance of ariy public duty by the Government.

If any peno.n fall• in any of the three limb• .accordin& to the ·,

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learned special Judge, he would be a p~blic. servant within·the ~eaning · .of. the expression in Sec. 21. IPC..

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· · It wa.s c~nceded before the learned special Judge and not retracted before us that the case of the accused does not fali in the first limb i.e. the ac;;used as M.L:A. could not b~ said to be in the service of the GJvernment: The contention is that the accused while receiv'ing his.· -salary as M.L.A.,under th; Maharashtra Legislature Members' Salaries and.Allowance~ Act, 1956 was and is in the pay of the Govcrnmeni. The second limb of the submission w;is. that even if the pay which . the accu ed received ~s M.L.A. tinder the relevant Act would not make the accused a person:in the pay of the Government, nevertheless. the 'ray recoiyed .bv !1im would be the remuneration which !lie accused ·would receive for p:orformance of public d~ty from the Government, It was ·Contended on behalf of the compJaina1it that the. expression' · 'in tlie pay of the Government' would, in the c;ontext in which t~e ex pression i< u;,,J in S'G. 21(12)(1), mean only ·one thing that the pay ·n1ent must be by-,i. inasterto a servant and i111Jess there is relationship of master and ·serva.nt or reh~tiqnShip of comn1and and 6b~~ience between the payer and the payee, ·mere paymen.t even if styled as pay· · would hoi mean that the payee is in the pay of the payer. Proceeding along it was submitted that. M.L.A. cou'ld not be said to be subject to obedience of any coinmand by the G,overnment, and therefore .the accused as M.L.A .. could not be said to be 'iri the pay of the Govern ment'. And as ,regards the third limb, it was urged that. the accuse\! as M.L.A: was not·performing any public: duty for the performance. of which he was remunerated by the Govcrnm;nt. Additionally, it was urged that"the expre$sion 'Government' in cl. (12) (a). musi receive the same meaniug'assigned to it in Sec. ,17 Ti>C.meaning thereby that it denotes the Central Govern.;,ent or. the Gvvernmenl of'a State as the context requires. It was ourged that in that s.ense the expression 'Go vernment' in cl. (12)-(a) would mean 'Executive Government' and it would be adding insult.to injury ·if it can ever be .said that M.L.A. is· in tl19 pay of the Executive Government or State Government. On behalf of the accused' these submissions were repelled by urging that . the use of word·'or' signifies a disjunciive and not conjuctive and;.that vie.wed from this a·ugle .the first part of cl. (12) (a) 'in the service of the Government' would iinport the notion·of master servant or command ".· obediehce relationship, b.ut the expression 'in the pay of the Govern ,_. ment' would signif.v someone otl1er than. that included in the first limb and as th) legislat>tre could·not bo accused oftautofogy or redundancy the expression 'in the pay of the Government' would exclude any.notion ef master servant or command· o\!edience relationship. lt was submit-

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ted that conceivably there can be a person in the service of the Govern ment though nobpaid by the Government and conversely there' can be . · a person 'in the pay of tlie Government; .without being in ·the service of the Government. It was also submitted on hehalf of the accused that it would be constituti;rial lmpertinence to say that M.L.A .. does· n9t perform any public.duty. His duty may be political or mo"ral as urged. on behalf of the complainant bu·t it. is nontheless· a ·constitutional duty whi.ch ·he is performing and that duty would be comprehended in.the expressi~n 'public duty' fn cl. (12) (a). As a corollary it was submitted that the remuneration in the_ form of pay which !he acc~sed receives and has been receiving since he ceased to be the Chief Minister under t.he· rel~vant Act is remuneration for oe performance. of .the public duty by the Gi)vernment. The neat question that emerge·s on the rival · contcntionS iS-.one of Con·struction_ of _the expre-ssiori 'in' the. p8y Of' · and the expr_ession 'Government· in cl. (12).(a).

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At the thresh01.d learned c~unsel for

the accused sounded a not~ of caution that the Court should steer clear of-the impermissible . attemDt of the i:tppe11ant to arrive_af.a true meaning.'ofa ·lcgisJ::itive provi;ion by ci.elving deep into the l10ary past anct .tracing !he histoi·i-. ·cal evolution of the provision. a\vaiting construction; lt was sub1nitted with emphasis that this s·uge.sted exteri1al aid to ·construction falls in the exclusionaTY rule .and ·cannot- be availed- _of. Theref~rc, ·it hns become necessary to exan1ine this pr~lin1inarv'objectioi1 to the court r~sorting to thi; exte!'nal aid to-construction. "sec. 21 (12) (a) acquired its present form in, 1964.

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Mr. Singhvi contended that even where the words in a statute are-'amb~-guou; and rniy-be -open .to.-·ffiofc than o~e meaning or sense, a referenc·e·to the debat~s in PatJjaTI1e11t ·Or the rCport of a Comn1isSioi1 or a Committee which preceded the enacth1ent of the statute under . consideration is.-not a pern1issible µid t6 constr~ctio~1. ThiS ·is· ~hat is cti"ll~d· the exclusionary rJ.Jlc. in sUppo~·t of the'· sub1nission, r~liance·. was placed. upon Assa n Raiht'ays and Trading Co. Ltd. v. Inland Rcve nue:comniiss;onersr11 in \vhich the House ~f Lords declinect·to Jook into fue Report of .the Rc,yal ·Commission en lncome tax in order to ascertain the me<:fling ~f certain \\'c..rds in 'the Inccme Tax Act, 1920 on the ground that no such Cvfdence for the purpose. of showing the intention, that is the purpose or objcet, cf an Act is· admissible. The iii!ention of the legislature must. be ascertained froin the words of the

(l) [1934]<AJI. E.R. 646 (Reprint)

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statute .which such extranuous assistance as is. legitimate. This view appears to. h1Vi' been comhtently followed in United,,,Kingdorri bfc.rnse in Katikiro of Buganda v .. Attorney General''', the Priv¥. Council held· . in agreement with the Court of Appeal of Eastern Afi ica that the con- · · ients of the White Paper were not admissible in evidence·for the purp

ose of construing the schedule. Simi1arly in Central Asbest~s Co. Ltd. v. · Dor/112 ', the House of Lim\srleclined to look at the Committee Report which precede1nhe <\rafting.of the Act. ln the Administrator General of Bengal v. Prem/al Mvllick & Ors131 , .the Privy Council ct'isapprovec\ the teferen~e to' the pr?ceer\ing of the Legislature whic.h resulterl in the· pa~sing of the Act II. of 1874 as legitimate aids to the construdion of Sec. 31 by the Appeal B"j,ch of Calcutta High Court. Relying on these decisions, a valiant plea was mar\e to persuar\c us not to depart' from this wellaccepter\ proposition of!aw in England. The.tren<l of law manifeste<l by these r\ecisions .broa<llv ii,dicat.e that in the days gone by the courts i11 Englanr\ were of the view that reference to the recommenr\ations· of a Commission or Committee appointer\ by the Government or statements in White Paper which shortly prece<lerl the statute· under- consi<ler:-ition .were not legitimate ai<ls to construction of thC statute even_ if the word<; in the Statute v.;ere ambiguous . .

•

The trenr\ ce'rtainlv seems to be in the reverse gear in that ia order.to ascertain the lf~C meaning of ambiguous words i.n a statute, · r\!ferenc·e to the -rcpo·r-tS an<l reco1nmenctatior:is of t!ie Ccim111is-s_ion or Committee which prece<le<l the enactment of the statute are hel<J. legi timate external air\s . to construction. The modern approach has to a considerabl.e extent roded the exclusionary rule even in Englan<1.. A Cohstitution Bench ~f this Court after specifically referring to Assam RailwayB and Trading Co .. Ltd. v. I.R.C. in State of Mysore v. R. V. . Bidap"' observer\ as uµr\cr:

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"The trend of acar\emic opinion an<\ the practice in the · European system suggest that interpretation of a statute being . an exercise in the ascertainment of meaning, every thing which is logically relevant should be admissible ................... , .. . . There is a strong case for whittling down the Rule of Exclusion · followed in the British courts and for less apologetic reference to legislative· proceedings an<\ like materials to read the meaning

(I) [1960] 3 All. E.R. 849

· (2) [1972] 2 All. E.R. 1135 at ll38.

(3) l,L.R. 22. Cal. 788 (4),(l974jl S.C.R. $89 at 594.

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52S •

of the words of a statute .. Where it is plain, the language prevails, but where there is ol.Jsctirity or )ackof harmony with other provi sions and in other special circumstances, it may be legitimate to take external assistance such as"the o bjec( of the provisions, the mischief sought to be remedied, the social context, the words -ofthe authors and other allied matters."

Approaching the matter from this angle, the Constitution Bench looked info the proceedings of the Constitutent .Assembly and "The Framing of India's Constitution; A Study' b.v 13. Shiva Rao. It was however urgeJ. that liefore affirmatively saying that in. JJidap's case this Court has fi.o,allv laid to rest this controversy, the court. may refer ·to Comniissioner of Income Tax, Andhra Pradesh, Hyderabarrv. Jaya- lakshmi Rice and Oil Mills Contractor Co. <i> At page· 368 a be~ of three fudges of this ·court without sci much as examining the. princip~e un~.erlying the exclusionary rule dissented from the view of the High Court that the report .of the Special Committee appointed by the . Government of India to examine the provisions -of the Bill by which Sec. 26A was added to the Income-tax Act, '1922 can be taken into· consideration for the purpose of interrp,teting relevant provisions of the Partnership. Act. However it may be stated that the _Court did not refer to exclusionary rule. It diss~nted from the view of the High . . Court on the ground that the statemeni relied upon by the the High Court was relating to clause 58 corresponding to Sec. 59 of the Partner'.· ship Act and that Statement cannot. be taken into' considerat.i6n .for· the purpose of interpreting the relevan\ provisions of the Partnership Act. This decision was not noticed in Bit/op 's case but the decision in Assam Railways & Trar/i11g ·Co. Ltd. relied upon by Mr. ·Singhvi was . specifically referred to. This decision cannot therefore be taken as an a1ithority for the proposition· canvassed by Mr. Singhvi. Further. even in the lane\ of its birfi, the exclusionary rule _has received a seriou• jolt in Black-Clawson International Ltd. v. Papienvorke Waldhef As chejfenburg AC '2 ' : Lord Simon of Claisdale in his speech while examining the questio~ of admissibility of Greer Report observed a• under·:

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"At the very least, ascertainme>;lt of the statutory objective . can immediately eliminate many cf the po.ssible meanirigs th.at the language of the Act might bear: and, if

~91i1TS.c.R. 36S. C (2) [1975] l All. E. R. 810 ..

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an ambiguity still remains. consideration of the statutory objective is_ one .of _the means of resolving

it.·

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The stalurory obj~ctive is primarily_ to be· c~llected frorri the provisions of the ··statute .. itself. Jn these days> when the long title"can be amended in both Houses, I can i_t.·onfv i~ ·cus~ of an ·see, no reasoi1 fo·r havi~g recourse to . ambiguity'--'·i't is the plainest of an the guid~s to the general objectives of a statute. But it wilf. not· always help· as . to partiCular provisions: As to the statutory· objective of these, , a report leading to the Act is to .be the most ··pot~nt. ·aid; and, in myjudgment, it would be' more obscurantism.not to avai.1 oneself of it. here is, indeed clear and high. auth- ·

likely

· • ority that fr is availabJe for this purpose". .

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And in support of this statement of law, a number o_f cases. were relied upon by ihe learned Law Lord. it may also be mentioned that Per ·curiam.it was held that "where there is an ambiguity in ·a staiute, the court may have regard fo the' Report of a Committee presented to Parliament containing ·proposals for legislation which resulted in t.he eqactment of the statute, in order to ·determine the mischief which the statute· was intended to remedy": Though. the unanimous view .was that the.report of a committee presented to'Parliament prec~ding the statute could be seen for finding" out the then state of the law a~d ..

. : the mischief required to be reme.died, if must be stated that the majo- . rity were of the opinion that report could hot be looked at to asccrtaii1 the .intention of .Parliament. The minority (per Lord Dilporne and Lord Simon) were of the opinion that wheii a. draft bill was enacted · in a. statute withoi1t any alteration, Parliament clearly manifested its intention to accept committee's recomITtendation which would imply that Parliament's inten.tion. was to .do wha.t committee wanted_ .to achieve by. its. recommendations. A referenee .to Halsbury's Law·s of England,. Fourth Edition, Vol. 44•paragraph 901, would leave no one in doubt that 'reports of commissions or committees preceding. the enactment of a statute may be c0nsidered as showing the misc.hief aimed at and the s\ate of the Jaw as it was u.nderstood to. be by the · !Cgislature when the sfatute was passed.' Jn the footnote under the ·state~ent of law cases qupted amqngest others are R .. v. Ulugboja''' • R. v. Blexham'''· in which Eigth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction .. :fherefore, it can be confidently said that the exclusionary_ rule is flickering in.its ------.-------

(!) [1981] All, E. R .. 443 (2) [19'2] I All. JO. _R. 5i2

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527

<lying <:mbers in its native land 0f birth and has been given a decent burial bv this Court: Even apart from ·.precedentS tlie basic· purpp~e. is the ascertainment with unc!orlyi~g all canons ~f construction rea·simable certafoty of the intention.of . Parliament in en~cting the . Iegi~Iatian. Legislation i$ ·enacted to achieve a certain object. The . object may be to remedy a mischief or to create some rights, obligations or imppse c!uties. Before undertaking the.exercise of enacting· a statut~, Par!aiment can be taken· to be aware: of the cot1stitutional principle · ·of j"ucl.icial review meaning thereby the- legislation would -be dissected . and subjected to microscopic.. examination. More often an· expert committee or a Joint Parliamentary committee. examines the provisions of th.e proposed legislation .. But language being an inadequate ·vehicle • of thought co"mprising intention, the eyes scan~ing. the statute ~ould be presentecl. with varried meanings. ff the basic purpose underlying construction of a legislation is to ascertain the real intention of the Parliament, w~y should th~ aids which Parliament avitilcd of such as .report of a special ·Committee· preceding the ena.:.tmeni, existing state of law, the environment necessitating enactment of legislation,. and -111' ohject sought to be achieved, be denie"d to court" whose function ·;, p,-iinarily to give effect to the real inteniion ·of !he ·Parliament in e;u,ting the legislation .. Such denial would deprive the court of II substantial and illuminating aid to construction. Therefore; departing "rro~1 the earlier. English decisions we are' of the opinion that report• . of tbe committee which preceded the enactment.of a legislation, re- . ports of Joint Parliamentary Committee, report of a commission: set up for .collecting information leading to the ena~tment are permissible . -'~/ · • external aic\s to construction.· fo this connection, it would be advanta geous to re.fer to a passage from Crawford on Statutory Construction (page 388). It reads as, under:

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· "The judicial opinion on this 'pofot is certainly not 'quite uniform· and. there are ·America~ decisi~ns to the effect that the general. history of a statute and the various steps leading.upto an enactment including .amendments or modifications of the origfoal bill and reports of Legislative , Cominittees can be looked at for ascertaining the intention of the legislature wher_e it is in p6ubt1 but th.ey . hold definitely that the legi~lative history is inadmissible when there is no obscurity int.he meaniRg of the s_tatute".

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In United states v. St, Paul, M.M. R·ly. Co.'1>

(!) 62 Law ed. 1!30aLl134 •

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it is observed that · •

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the .reports Of a commi!tee, including the bill .as int01duced, changes 'made in the. frame of the bill in. the course of its passage and the state ment made by the committee chairman incharge of it, stand upon a . different footing, and may be resorted to under proper qualifications'. The objection therefore of M~- Sihghvi to our looking into the history of the evolution-ofthe section with aH its clauses, the Reporis ofMudi . man Committee and K. Santha'nam Committee and such other ·exter- nal aids. to constructiou must be. overruled. •

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Tracing the history of cl. (12) .of. Sec. 21 lPC with a view to as- in .any of the certaining whether M.L.A. Wou]d be comprehended clauses of Sec. 12 so as to be a public.servant, it must be ncitited at . the outset that Indian .Penal.Code is a statute of the year 1860 when there were no elected legislatures and a fortiori there were no M.L.As. Even if Macaulay is to b_e adjudged a visionary, who coi11d look far beyond his t.imes yet in 1860 it was incoi1ceivable ltlr hi.in to foresee 'the constitu\ional <levclopment ofJndiastages by stages or.0. to envisage .the ~ettingup elected legislatures, the members of which wculcl. without anything more'be comprehended a.s public servant in any ofthe sub- clauses of'Sec. 21. ·Undoubtedly, framing of a legislation is generally riot of a-transient nature but it is enacted.and put on the statute book for reasonably long period until the society for which -it is meant un- dergoes a re_volutionary transfo.rmation so as to make the law irrele- vant or otiose. A visionary can foresee possible changes which may ' ,be .in.ter-connccted with the present situation one leading to the other. But the East India Company rule which had just ended; in 1857·after the first war of independence, it was difficult to devin'' the possible --<-{ revolutionary changes !hat may come in by 1919. At any rate at the time when the Indian Penal Code was enacted. there was no elected legislature ano:therefore, there was no M.L.A. ln con_struing a statute ·more especially the ancient statute, the court may look at the surround ing circumstances when ·!_he· statute was enacted. In Halsbur)l's Laws of England, Fourth Ed.ition, Vol. 44 paragraph 898, it is observed that . the construction of ancent statutes may be eludicated .by what in the· language of the courts is called contemporanea expositio, that is, by seeing how they were understood at the time when they v,ere passed . . Undoubtedly, this doctrine cann9t be applied to modern stctutes or indeed to any statuie whose meaning appears to .the court to be plain and unambiguous. At 'any rate, one can justifiably say that M.L.A. could not be comprehended in any of the clauses of Sec. 21 to be a public servant when the Indian Penal Code. was enacted in 1860 .

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R.S. NAYAK v. A.R. ANTULAY (Desai, J.)

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The next stage in· the historical evolution of the Ia w with regard lo corrupt actions of members of public bodies is the one to be found in a Bill introduced in 1925 called Legislative Bodies Corrupt Practices Act, 1935. This Bill 'was introcfoced, to give effect to th.e rec0mll).encl.a• tions of the Reforms Enquiry Committee known as Mudiman Com mittee. In. the. book 'Evolutton of Parliamentary Privileges', by Shr.i S.K: Nag, the author t-raced the steps which led to the introd.uction of the Bill. In the statement of objects and rea'sons accompanying the Bill, it was stated that the corrupt influenci 0g of votes of members of ~ the legislature by brib~ry, intimid1tion and like should be made pend ..i' offences under the ordinary criminal law and para 124 in.dicates that - ~ tb,is recommendation was a unanimous'recommend1tion of the Com- mittee.as a whole. Then comes the more important stato111ent which may . be qtracted:

~.

"Tlie tender of a bribe to, or the receiving of a bribe by, a member of a lcgisl<tture in India as an indu~omont for him t~· act. in a particular manner as a. member of the legislatur is not at present an offence_..'' ·

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-The Biilso'ught to fill in the lacuna. It thus follows that Viii 1925. it was clearly un<1.erstood that the M.L.A. as the ho Icier of that office, . which must .have come into .existence by the time under the Owvern ~ ment of India Act, 1919, was not a pu.blic servant falling in any o.f the i::lauses~of Sec. 21 and this .lacuna )vas sought to be remedi•d by in-· .J.. troducing Chapter 9-B bearing the heading 'Of offences by or relating Yfo members of Legislature Bodies'. The dictionary clau§c in the Bill .. would have included M.L.A. in the expression "Membor of Legis- lative B~dics'. The object of the BiH was to provide for puni•hment of ·corrupt practice by or relating to members of Legislative Bodies )\' constitute<'. unJ.er the· Government of India Act. This was to bo passer\ by (he Central Legislature. It was an abortive· attempt by members themselves to be brought within the purview of the penal law. One Ca·n write a finale by saying that the Bill was l\Ot enacted in.to law. That is the second stage in the history of evolution.

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Before we proceed further in the journey, it is neces .. ry to tiike note of one intermediate stage to which our attention. was not drawn during the arguments. Jn. Prevention'. of corn!vtion Act, 1947 by · Sethi and Anand at µage 50, it is mentioned that till Criminal Lr.w (Amendment)-Act, 1958 (Act No. II of 1958) was put on the statute H book, Sec. 21 of the JPC consisted only of eleven clauses. Clause 12

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was introduced by the aforementioned Act ·and it read: 'Every officer in the service or pay of a local authority. or of a Corporation 'engaged ·.).. in any trade or industry which is established by a Central, Provincial or ~tat~ Act or of a Gqvernment Company as defined in Sec. 617 of the Companies Act, 1956'. .Obviously, as incorporated clause 12 would not comprehend M.L.A. and cl. 9 as it siood till then, could not haye· . comprehended him as would be presently pointed out. Cl. 12 intro- . duced bv Act JI of,l958 is:re-enact'd as cl. 12 (b) and it is nobodv's case that M.LA. is c.overed in cl. 12 (b ):

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The next stage. of development ma.1 now be noticed. While ·

. participating in the debate <!n the demand for grants for the Ministry:[· . of Home affairs in Jilne 1962, som.e members of the Lok Sabha speci fically referred to the.growing menace of corruption in administration. In reply to the debate, the then Home Minister suggeste~. that some · 'Members of Parliament and if possible some' other public men do sit with the officers in order to review the problem of corruption.and make ~uggestions. ·Pursuant to this annourtcement, a com~ittee chaire~. by Shri K.Santhanam, M.P.was appointed with nine specific terms of refer ei;ice which ilit~r a/ia included~ ''to suggest changes whkh would ensilre speedy trial of.cases of bribery, corruption and criminal misconduct and make the law otherwise more effective'. This Committee submitted· its report on March· 31.. 1964 . While examining the fourth term of ·reference extracted hereinabove, the Committee in Section 7 of_ its ~ report considered the question of proposed· amendment to Indian Penal Code. The Committee focussed .its attention on the definition' • . of 'public servant' in Sec. 2L Paragraph 7.6 is most important fa!.(" the present purpose.· It reads as under:

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. '.'7.6 .Seciion 21. d~fines . "public servant'. 1welye categories of .Public servants have been -mentioned, but the preSei)f definition requires to be. enlarged. The riinth category describes a large variety of officers charge~. \vith the perfor mance of different kinds of duties ·relating to pecuniary inter~. · ests of the State. The last sentence of this category, namely, "every officer in the service or pay of the Government •or remuner~ted by fees or coihmission for the ·performance'of any public du y'" sh9.uld be put as a generai definition. After the. word ·'.'governmen:e.',- he twOrds "local alitho~ity". "public corporation"; or "govetnment company" should be added.' · The words "engaged in· any trade or industry'.' may also be deleted from the· twelfth clause of Section 21 as these words

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have a restrictive effect. ff should also be. made clear that all Ministers,· Ministers of State, Deputy Ministers, Parlia ~entary Secretaries and members ·of local authorities. come . . under the definition of 'public servant' A futhei' · category should be addedto include all persons discharging adjudica tory functions under any Union or State. Law for the time in fdrce. ·we .. also ce>1'6ider it necessary to include being the following ·categodes . within ihe, definition of the tei:m. 'pulbic · s.ervant' :~

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President, S~cretary and all

.members of Managing · •

Committee ·or a registered Co"operative Society;

• Office bearers and employees of

.eductional, ·social,. religious ancj · other · institutions; in whatever· manner established, which receive aid in ariyform from the Central or State Gayernment''.

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. This :recommendation led to 'three irhportan.( amendments in D ·

• . els. 3, 9 and 12 .of Sec. 21. The unamended clauses and the effect of the amendment ill 1964 must b·e brought out in sharp 'contrast so as to appreciate the cha!Jge made.and its effect on the language employed ..

· ). · Clau.se as they stood prior ro the. 1964

,-.mendment

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.Amendment

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Third: Every ·Judge in .including any person empo . werecj by law to discharge, whether by himself or as a member of any body of per sons, any adjudicatory fun ctions;

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Every·

Ninth: : Every officer whose duty it

officer is_, as mch officer to take, receive, keep, ·whose duty it is, as such or expend any property on behalf of. officer to take, -teceive, keep, the Governinent, or to make any sur· or expend' ariy property on .\ vey, assessment, or contract on be- behalf of the · Government, half of the Government or to execute or to make ariy survey, as any revenue=-prcicess,. or to investi.· sessment or c.ontract on be· &ate, or. to report, on any matter affec- half of the Governmentt or to

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[1984] 2 S.C.R.

the pe.cuinary

cxcctit~ any rfvri1uC-proccss, ting interest of the or to i11vcstigate,.or 10-rcport, GoVcrriment or t9 1n2kc authenticate- or keel' any document.relating to '>n any matter· ;;ffecting the the pecuniary interest of the Government, • pecuniary ii1tere;t_ of the Ge ar to prevent }le infraction of any law vernment, or make authenti cate or keep any document for the protection of.the pecuniary in- terests. of the-Government, and eVt!'rj! relating. to the p~cuniary in-· officer in the service. or pay of .the terests of the Government, Government or rem11nerated by fees or to prevent the infraction of the pe1formanc~ of any law for. the proteciion or commission for any pubiic duty. of. the pecuniary interests of the Government. . •

{l!l'nderlining ours);

' .. Twelfth: Every officer in the .service ·or pa; of a local authority or of a cor- · poration engaged· in any trade or indus try ·.whioh is established by a Cen\tal, Pr~vi"nCial or State Act or of a Govern ment._Company as defined in section 617 of tlo.• <::ompanies Act, 1956.

Twelfth : Every person: (a) in·.the service or pay of the .Government or fe1Yiunc rated by fees or commission • 'fot the performance of any public. dut_v by the Govern- . 1nent;

--4.

· (b) in the service or pay of a local authority, a corpora- tion established by or under · Central, Provincial or State,..../' Act or a Government Com' pany as defined in section 617 of the Companies Act, 1956.

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A bare c9tnparison of tl~e two els. (9) and (12) \vould reveal. the .

change brought b?Y (he Amending Act 40of1964. The last part (under lfo_ed portion) ii1 the unamended cl. (9): ·'ev_ery officer in the scrvi£e or · pay of the Government or remunerated by fees or· commission for the performance ·of any 'public duty' has been severed from the 9th clause and incorproaied as an independent clause (I 2) (a). The origi" nal clause (H) was deleted and has been re-enacted, as d .. (12) (b) . with minor ·modifu:atiops. This history of development is noteworthy ·for a 1very compelling reason to be presently nient!01ied.

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discretionary powerand this includec1; Minister both Cabinet and State,, A Deputy Ministers. and parliamentary Secretaries. ML.As were not · considered holding political offices capable of abuse ·of power. The Committee recomended amondment of.the Jefinition of the .express- ion •public servant in Sec. 21 IpC so as to include ·Ministers of .all rank of Contra! and State level and Parliamentary Secretaries in the . definition of ·public servant'. The Committee did ·not recommend that the proposed amendment shoul.d comprehend M.L.A. 'The Committee separately dealt with the. M.L.As in p;iragraph 11.4 in Sec. Ir of the Report'. After stating that, "next to the Minister, the integrity of Members of Parliament an<\ of legislatures in the State will be a great factor .in .creating a favourable soical climate against corruption .... .It is desirable that a Code of Conduct . for legisla- tors embodying tb.ese and 'other pri~ciples should be framed by a spe- eial committee of reprsentatives of Parliament and the legislatures nominated by the Speakers and Chairman. This Code should be · legislattires formally approved by resolutions of Parliament and the and any infringement of the Code should b.e treated as a breach of ') privilege to be inquired iJto by the Committee of ·privileges,. and if D a breach is established, action including termination of membership may be taken. N''cessaty snaciions for.enforcing the Code of Conduct should also be brought into existence".

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~-. dations of the Committee which were accepted by

The Governtnent minutely examined. the Report. The recommen~ the Govemment led to tho introduction of 'The Anti- Corruption Laws (Amendment) J!ilL 196.4 (Bill No. 67 of !964j in the Parlirment. The salieni features ·of the Bill worth-noticing are that cl. (3) of Sec. 21 was proposed to be amended as recommended. with minor s!rrctural .change. Cl. (9) of Sec 21 was dissected as recommended and its last part ·'and every officer in the service are pay .of the GJvernment or remunerated by fee's or commission for the performance of any public duty' was detached and re-enacted as cl. (12) (a) and the original cl. (12) ,;,as renumbered as Cl. (12} (b) with slight modification. This would imply that no attempt was made to bring fo M,L.A: within the conspectus of clauses in Sec. ·so as to make him. public servant. The position of the Minister was slightly fluid but a clear picture <?merged. during. the debate on the Bill in the Lok Sabha. Mr. lfathi Minister-incharge while piloting the Bill, on November 7, 1964 amongst others stated that the will not deal with those recommendations which had not ·been accepted by the ·Government, but would explain them fater, if any point is raised in that behalf, (See Lok Sabha Debates (Third

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that he- will n0t deal with those recommendations .. whi.ch, had noJ not ,been accepted by the Govermrient, but. would explain then; later, if any point is raised in that behalf. (See Lok Sabha Debates (Third . Series), Vol. XXXV, Col. 245) While replying to th.e debate, Mr'. Hathi stated that the ccide·of conduct has already been evol~ed for Mini_>ters. because the recommendation of Santhanarn Committee for including . Ministers of all .tanks arid Parliamentary Secretaries.in the definition ·.of 'p_ublic servant' .~as not accepted by the Government. But there is an interesting caveat to this statement.to which we would presently revert. He further stated ihat th.e speCi-fic recommendations about the definition 'p.llblic servant' to include Ministers-lrns not been accepted and ·included in the Bill because Ministers are not mere.Jy public ser vants .but they have a greater moral and social responsibility towards · : the people. Later ·on in the debate it was· conceded that the Minister is already included _in the definition of 'public. servant' evc11 before the proposed afuendment in view of ·the decision of the Supreinc Court in SiiivBahadur Singh's cas~ in whi~h Minister was held to be a public servant. It was 'further stated that in Yiew of thisjudgment, the Govern- · ·inent was advised that the recommendation: ofthio Santhanam Commit, tee for inclusion specifically of Ministers of ail rank and Parliamentary · Secretaries· was rodundant. (Sec· Lok _Sabha Debates. (J;hird se,ie~) Vol. 35 cols. 729 and 731). Whatever that may be the concfosion is inescapable that till 1964 at any rate M.L.A. was not :comprehended iri the definitioi1 of 'public servant' in Sec. 21. And .the Santhanam · · Committeedid not recommend its inclusion in_the definition of 'public,:. servant, in Sec. 21..

.. Bill No.47 of 1964 ~as ~nacted as Act 40 .of 1964. Now if p~ior :to the· enactment· of Act 40 of 1964 M.L.A. was not comprehended . as a public servant in Sec. 21, the next question: is: did the amendment . make any difference in his pos_itioti. The amendment keeps the· law virtually unaltered. Last part of cl. 9 was ·enacted as. cL 12 (a). If M.CA. was not comprehenc!ed in clause 9 before its·amendment and dis section, it would make no difference· in the meaning of law if a portion of.cl. 7 is re-enacted as cl. 12 (a). It musdollowas a necessary corollary that the amondment of Cls. (9) and (12) by Amending Act 40 of 1964 did not bring about any change In the interpretation of cl. (9) and cl. (12)(a) after th~ amendment·of 1964. In 'this connectfon, it wou](t be advantageou& to refer to G.A.. Monterio v. The State of A.jmer"' follo wed and approved in The State of A.jmer v. Shivji Lal''' in both of

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;_·~~~~~~~ (1) (1956] S.C.R .. 682.

r (2) (1959) Supp,'2 S.C.R. 739.

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R.S. NAYAK v .. A.R. AN1ULAY (Desai, J.)'

which c!. (Q) as it 'stood. prior to its amendment came pp fOfconstnic tion. fa \he first . mentioned, case, the accused was a 'chaser in the Railway Carriage Workshop at Ajmer. He was. held to be an officer in the pay of the G wernment, comprehended in the last part of cl. (9) of Sec. 21 as it then stood. fo the second case, accused was a teacher in a r"ilway school at Phu!era. His contention was that he was not a. public servant and tht .contention had found favour with 'the learned ·Judicial Commissioner but in reaching the· conclusion, .he appeared • ~ to have ignored the last.part of cl. (9) prior to. its ·amendment in 1964. Ii1 .the appeal by the Siate, .. this Court held that ·the case of the accused -)_ would be covered by the last part of cl. (9) because the accused fuffilled the tw'in·conditions of either being in the. seryice or pay of the Govern,

ment and was entrusted with the performance of a. publiC duty. It may. · al;o be mentioned that the last three Words 'by the Government' found in cl. (12) (a) after the ~mendment were riot t.here in the last part of cl. 9'. . Tb.e question was whether addition. of words 'by the Government'

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·made any difference in the interpretation of last part of d. (9) which • is substantiaHy re-enacted as c1. (12)(a). The Gujarat High Coui't in Manshanker P;abhashanker JJwivedi and Anr. v. The .State of. GujaratnJ traced the history of amendment that payment by the ·Government was implicit in cl. {9) though the ·words 'by the Government' were not_ ·there and were added to cl. (12)(a) after re-enacting the last part of cl. (9) as (12)(a) .. This beco1nes clear from the decision of this Court in the appeal against the judgment of the Gujarat High Court in" the . State of.Gujarat v. Manshanker Prabhashanker Dwivedi .. 121 The accused ·:~_ in that case was cha,rge<! for having committed'~ffenccs under Sec. 161 IPC and. Sec. 5 (2) of th~.1947 Act. The facts alleged were that the . a.ccused-'-respondent before this Court was an examiner appointed , by the· University for the first year B.Sc .. examination .. He was alleged to· have acc~pted gratificati~n of Rs. 500/- other than legal reniuneta- ~ tion for showing favour to a candidate by giving him more marks than he deserved in· the Physics practicai examination; The learned special Judge convicted him. In the appeal, the High C-ourt aft'e~ taking note of cl. '9 and cl. 12 of Sec. 21 pri@r to their amendment J?y Act 4() of 1964 held that for cL 9 to apply the person should be an officer 'in. t.he service or pay of the Government ii; remunerated by fees or commis sion for the performance of any. public' duty 'and that such pay or remm1eration or commission must· come from the Government'. It .was further held 'ihat the context of the whole of the Ninth Clause, as

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(i) AIA J970 Gujarat n (2) [1973! I S.C.R. 313 ..

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remuneration or in respect of the pcrform~ncc of public duty.' It.was furthe{ held that the use of the word 'officer' read in the context of the \Vords imm,diately prec~ding the last part wou'd indicate ·that the· · remuneration contemplated was .remuneration by Government. The High Court further held that the amendment made in 1964 and in particular the addition of the words 'by the .Governm~n:t' in sub~cl (a) of clause .Twelfth showed the legislative inforpretion of the niatc- : rial portion of clause Ninth as.it stood before the. amendment under · consi'deratio)l.. After extraction these reasons which. appealed to 'the ·High Court, this ·court observed than the reascir\ing of the High C;>urt does not suffer froin any imfirmity. It would transpire that payment 'by the Government was i~plied without the use af the expression, by the Government in cl. 9. The wbrds 'by the Government' are added in cl. (!2)(a} amennded. This apparently do.es not make any differe.nce. It would therefore necessarily follow that the amendment' of els (9) a.nd (12) did not bring abo.ut any chauge in the coverage and construe-. ti on ofth• two dauses prior to and sinoo ·their amedment. If that bg so, it would follow as nece5'ary corollary that if M.L.A was not a public servant with in .the meaning of the expression prior to Act 40 of 1964, since the Act, the law, legal effect and• onverage ofexprisstion public servant remains unaltered and hance-, M.L.A. is not a 'public sorvarit' comprehended in cl. {12)(a). Thus .looking to the history and · evolutipn of Sec. 21 as traced, it is clear. that-till .1964 M.L.A. could· not ·have b'en conceivably comprehended in expre•sion 'pUblice· ser- · vant' and the law did riot undergo any change si11ce the amendment. ~n·the.contrary~ the.recommendatio11 of the ~nthanam Committee which recominended inclusion of Mini•ters and Parliamantary Secre ta'ties but not of· M.L.A separately reo~mmended a co<;ie of conduct for M.L.A for seving them from the spectre, of corruption would · clearly and unmistakably s.how that till 1964 M.L.A. was not compre hended in expression,'public servant' iri Sec. 21 IPC and the amenment · by Amending Act 40 of 1964 did not bring about the slightest change in this behalf concerning the position of M.L.A. Therefor,, apart . ·from anything else,. on historical evolu.tion of Sec. 21 . adopted as an external aid to construction, one elm confidently say ·that M.L.A. was iiot and is not a •public servant' within the meaning of the expte~~ion in any 0f the clauses of Sec. 21 JPC.

, ·ff,:

Assuming that it would not be legally sound or correct accordinl! tg well-,-accepted canon of co.nstruction of a statute to construe Sec. 2.t (12) (a) by mere .historical evolution of the seation and the consti tutionally valid approach .would be to look atthe language em-

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Rs. NAYAK v. A.R. ANfVLAY (Desai, J.).

531 .

.Sec. 21 (12) (a) by mere historical evolution of the section and the constitutional!/ valid approach would be to look at the language em'. ' ployed in the section and upon its true construction, ascertain whether M,L.A. is a. public servant within the meaning of the. expression i_n that sub-clause. The learned special Judge held that M.L.A. is a public servant because he is. either in the pay of the Government or is remu noratect by fees for the perform1rnce of any public e\uty by the Govern ment.

·A person Would be a public servant.under cl. (12) (a) if (i) he is ia the service of the Government; or (ii) he is .in the pay of the Govern ~ent; or (iii} he is remunerated by fees or commission for the perfor-. mance of any public duty by the GovernmenF.

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relationship, and

.command-obedience

{);i_ beha·lf ~f the complainant-app~!Jant, it was contended that in order to make a person a ·public servant on the ground _that Ile is in the pay of the Government, there must exist a master-servant relationship or a if these. elements are absent even if a person is in ihe pay of the Government, he would not be a public servant. On behalf of the. re'spondent, it was countered asserting that the concept of master servant relationship er command-"obedience relationship is comprehended in the first part of cl. (12) (a) which provides that every person in the service of tile Government would. be a public servant. It was urged that if even for being comprehended .·in the second part of._the clause namely, a • J!Orson would be a public servant if he is in the pay of the Governme1ii, tli.tir ought to be•a master-Servant. or command-obedience relation ship, the Legislature would be guilty of tautology ~nd the disjunctive 'or' would lose all significance. The use of the expression 'or' in the contex't in which it is found in cl. (12)(a) does appear to· be a disjun ctive. Read in this manner, there are three independent categories· ·comprehended in cl. (12) (a) and if a p~rson fa]ls in any one of them, he would be a public.servant. The three categories are as held by the learned special. Judge; (i) a person in. the· service of the Government; (ii).~ person in. the pay of the Government; and (iii) a person remune r.ated by fees or commission for the performance 'of any public ·duty y the Government. One can be in the service of the· Government and may be paid for the same. One can be in the pay of the Government ll'ithout being in.the service of the Government in the sense of manifes relationship. The loting maste'r-servant or . command-obedience 1t•• of the.expression 'or' does appear .. (o us to be a disjunctive as con tended on bekalf .,f the respondent. Depending . upon the context,

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[1784), 2. s.c R ..

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111ay .be .read as 'an~' b~t the c~tirt would not do it unless it is

'or' ·so oli\iged because 'or' cbes not generally mean 'and' a,nd ·'and' docs · not .generally mean 'or'. (S_ee Gr<;en Y. _Pre1i1ier Glyrhon1vy .. 'llat~ COni pany Ltd.''ll Babu .. Manmohan Das & Ors . . v. Bis/11111 Das,'"'Ramta P•asadA ~garwal etc. v. Executive Engin~er, . Ballabgarh' & Anr. <a» and serveral. others which we coqsider it unnecessary to enumerate h"ere.

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. 01Ce it is accepied· that 'a person .in the pay of the Government' connotes a specific ·and independent c:ategory of public servant other than' a· porson· in the .service of the GovernmeriC does not inhere. a m1ssCer-servant or command-obedience . relationship between the G1vernment as the payer and .the public servant as ·the payee,•no. ·part <>f ·the section is rendered superfluous. Each part will .receive.its own construction. We therefore consider it unnecessary to refer to those decisions,. which were cited on behalf of tlie respondent that the correct canon of· construction to be adopted in such. a situation is that effect must be given, if possible, to.the words used in the statute,· for. the Legislature is deemed not to wast.e its words or to. say. anyting · in vain.

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What° then is" the true. i~terpretation of the exp~ession ;in the pay of the Government'. In other words, is M.L.A: a person 'In the pay of the Government' so as to ,be public servant within fue meaning of t~e expression in See. 21 (14) (a). The expressions that call for con·. struc'tion are (i) 'in. the pay of' and (ii) 'Gov~rnment'..

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Art. 195 of the <;onstitution proviLtes that 'Membets of the Legis- · 1ative Assembly and the Legislative Council of.a State shall be entitled to receiye.,such salaries and allowances as mayfrom time to time be determined· bv the Legislature of the State by law and, until provision: in that° respect is so made, salaries and allowauces at such -rates and upon such.conditions as were immediately before ilie commencement of the Constitution applicable i~ the case of members· Of the Legislative Assembly of the corresponding Province.' Armed with this power, •. the Miharashfra.State Legislative Assembly has enacted 'The Mahara shtra Legislature M'mbers' Salaries and Allowances Act, 1956 (Bombay Act XUX of !956)'. Sec .. 3 (!) provides that 'there shall be paid to each me .lier during the whole of his term of office a salary at the

(I) [1928] l K. B .. 561 at 568. (2)[1967] l S.C.R. 836 at 83'. Pl [19741 2 s,c.R. 821 at 830 .

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rate of Rs. 450/-p~r month' aqd snb-sec. (2) provides that 'there shall · be p1id to each Member during the whole of his term of office per month a sum of Rs. 400/- as a consolidated allowance for a11 matters · not specifically provi.~.edl or by or tinder the provision of the. Act~_. Sec. 4 provides for daily allowances to be paid to Members. Sec. 5 provides . travelling allowance to be paid to Meinbers.· Sec. ·SAC provides for for a free travel· by mil way and steamer by a Member subject to the· . conditions therein prescribed, _Members are also .eligible for some · allowances as.specified in various sections of the Act. The Maharashtra Legislature Member«Pen'sions Act, 1976 makes provision for payment of pension with effect from April I. 1981 at the.rate of Rs." 300 per . month to eve~y person who has s.·rv.:d as.a Member of the State Legis-. lature for a term of 5 years subje"Ct to other conditions. prescribed in . the section, There is .a· similar Act which makes provision:s for salaries and allowances of· the Ministers of Maharashtra State.

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· Undoubtedly, M .. L.A. receives a salary and allowances in his ' . . capacity _as M.L.A. Does it make him a person 'in the pay of the·Go- vernment'? Our attention has been. drawn to the meaning of the word '•pay' in differ.ent dictionaries and to the decision in· M. 'Karzmanidhl v. Union of l~rfo 111 . wherein after as:ertaining the meaning ·of the · word 'pay' given in: different dictionari'es, the Court. observe<'. that .·the expression 'in the pay of' doe$ not.sigri.ify .~ast~r-servant relation ship. The word, 'piy'_ standing by itself i11 open to various shades of. meaning and when the word is ·used .in a p'.uase 'in the pay.· of', it is more likely to have a different connotation. than when standing by itself. Before referring to the various shades .of meariing. set out in the dictionaries; it would be a~.visable to caution ourselves. against an unrestricted . roference to dictionaries. Standard ~.ictionaries as the · a rule giv-o in r?spoot of each woad a; meaningL in· which word has either been used or it is like!~ to be used in different contexts and connections. While it may .be permissible to refer to <1.ictionaries to find outthe meaning in. which a -word is capble'of being \rse~. or ·understood in. commqn parlance, the we11-known canon of construt.:tiOil should not even for a minute be overlooked that the meaning of the· . words ancl expressions used in a statute ordinarily take their colour from the co!\te~t in which they appear. '.In Dy. Chief Controller of Imports & Bxpom, New /)e/hi v .. R. T. Kosalrotn & 01'5: 12 1 this Court observed as under ; · .

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(I) [1979] 3 S.C.R; 254. (2) [19711 2 S.C.R. 507 @' 517.

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the context; the

"It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological dissection anc\ after separating words from their context to give each word some particular d~finition given by lexico the ins.truments upon the graphers and then to reconstruct . basis of those definiti9ns. What particular meaiin& sho~lcl. be. to words and phrases in a given .instrument is attach.ed usually to '.be gathered from 'nature of the subject matter, the purpose of the intention of the author and the .effect of giving to them one or the other permissible me aning on the object to be achieved. Words are after all used merely as a vehicle to · convey ihe idea of the speaker .' or· the writer ancl. the words have naturally, therefore, to be SO construed as. to fit in with the idea which emerges Oil. a consid0 ration of the entire context. Bach word· . is but a symbol which may stand for one or a ~umber of objocts. , The context, in which a worcl. conveying different shacl.es of meanings is' used; is· of importance in determining the pr<!tisc· sen1e wllich fits' in with the context as intended to be conveyed by tht~ iuthor".

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In State Bank of India v. N. .Sunda-ra Money!J', Krishna Iyer, J. speaking for the Court observed in his inimitable style that"rl.ictio . n~ries are i:iot dich~.~ors of statutory cons_truction wh~re . the benignant 'mo.od of a law, may furnish a·difforent denotation'. With this caution, . we .may briofly refer to the meaning of the expression 'pay' and 'in the · ,pay of' given by different dictionaries.

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As far as the expression 'pay' is CO!fcerned, a Constitutioll Bt•nclt of this Court in Karunanidl!i's case referred to various dictionaries and concluJ.ec( that the word odinarily means· 'salary, compensation; wages or anv amount. of money paid to the person who is deioribed as in the ·p;y of' the payer'. Serious exception was taken .on behalf of the appeallant, that. no canon of construction would perm~t' pickin2 out. shades of nieaning of' word 'pay' and then read the phrase 'in the pay of' as synonymous. with the word 'pay'. On the other hand, it . .,;as asserted that the point is concluded by .the cbservation of the CcLStilu-· tion Bench that 'so· far as the second limb of the clause, 'in the pay J>f. the Government' is concerned, that appears to be of a much wid<'r amplitude. s·o as to include ,,iithin its ambit even a public servant who

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541 ' 'R.S. NAYAK v. A.R. AN1ULAY (Desai, j,) pav of the other person anb yet there may not bo a master 'Servant · relationship between them. The court did not ascertain .the meaning . ascribed to phrase 'in the pay of' in. different dictionaries. The phrase 'in the pay:of' would ordinarily import the element of employment ot paid employment or employed and paid by the employer. Jn Concise Oxford Dictionary, 7th edition at page 753, the meaning assigned to the expression 'in the pay of' is 'in the employme11t of'.· Jn New Collins Concise English Dictionary at page .. 831, 'in the pay of'carries one meaning as 'one in paid employment'. In Websters· New World Dictionary, the phrase 'in the pay of'. carries the meaning· ~employed and paid by'. Relying on all ·these shades ofme~ning: it was urged . that the phrase 'in the pay.of' lbcs necessarily import the element of master-servant relationship and its absence cannot be countenanced . It was submitted even if. A is p0id by B a sum styled as pay unless B ·is servant of A, it cannot be said that B.ls in the pay of A. We see force in this submission. However, it is not implicit in the expression 'in the pay of' that there ought to exist a master-servant ··reiationship. between payer and payee. 0 te can be in the pay of another without b~ing, in employment or service of the other. We are not inclined to accept the submission that 'in the pay of' must in the context,-imply master-servant relationship for the obvious reason th.at the court has to.construe the phrase 'in t'.:e pay of' in its set.tirg Where _it is prcceC.'='d by the expressiuri 'in the S'~Tvice 'of the o·)verilmei1.t' and sucCecded by the expression ~remunerated by fees o.r con11nission for· the prfor-. mance of any public duty by the Government'. The setting and the context are very relev~nt for ascertaining the true meaning of the expres sion. In order to avoid. tho charge of.tautology. the phrase-'in the pay of the G wernment' in c!. (J2) (a) may comprehend a situation that the person may be in the pay of tl1e G,ivernment without being in the. · employmertt of the Government or without there being a master-ser vant relationship bet\Veenthe prson·rceiving the pay and the 'Govern ment as payer.

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n was however, contended that the question whether a person 'in the pay of the Governn1i1f' is ipso far:to a public servant is no more . res integra and concluded by the decision of the Constitution Bench in Karunanidhi's case? In that case before advei·iing to .t)1e d.ictionary meaning of the expression 'pay', the Constitution Bench speaking through Fazal Ali, J. observed as unt\er at page 282:

·

"We are of the opinion. that so far as the second limb 'in that apj)ears .to be of·

the pay of the Governments' is concerned,

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[1784] 2 S.C.R,

"We lire of the opi~ion·that so far as the second limb 'in the pay.of the Government'. is concerned, that appears to be of a much. wider amplitude so as to include within its ambit even · · public se.rvant who maynot be a regular employee recei"ing ·

salary from his master".

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The Court fµrther ob•erved that "the expression 'in· the pa·y of' pomwte· that a person is getting· Salary, compensation, wages or any . amount of money. This. by itself however, does not lead to the inference

that a relationship of master and servant musf necessarily exist in all +

cases where a pe.rson iS paid salary". We are,also Of the opinioi;i that the phrase"in the pay of the Government' does llOl import of necessity _"(

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. a master-servant relationship. lt i• perfectly possible to say that a person can be in the pay of .the Government if he is paid in considera- . tion.ofdischarging an assignment entrusted to him b; the Government without there necessarily being a master-servant relationship· between them, It is not .unusual in common parlance. to speak of. a person being in. the pay of another .if he is paid for acting at the behest or ' acc9rding to the desire of the· other without the other being his master and he the servant, that is io say without the control over the manner of doing· the· work which a master-servant relationship implies. It is · . such a category in addi,tiqn to· the one 'in the service ofihe Government' that is sought to be comprehem\ed in cl. (12)(a). In respect of the extractecj. obser\tation of the Constitution· Bench, there 'Is no attempt to distinguish the dicision in Karunanidhi's case and therefore, it is not necessary to consider the· dicisions cited in ·support of hie submis- sion ihat a ju~gment of th~ Supreme Court sespecially ofthe Constitu-. -'-)/I, tion Bench cannot •be d1stmgmshed hghtly .and is bmdmg on us and · \. ' unless questions of fundamental importance to national life are in- . volved .. need not be by us. yte mµst however poin~ out that the ratio of the dicision in Karunanidhi's case is not what is extracted herein' before but the ratio 'is to be found at page 290 where the Constitution · Bench held-the Chief Minister to be a public ser~a11t as comprehended ·

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in cl. (12)(s) of Sec. 21 on the fihding: ·

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"1. That a Minister is appointed or 0.ismisso,\ hy the . Governor and is, thc;refore, subordinate to .him whatever be. the nature and status of his constitutional functions.

:2:. ·That a Chief. Minister or a Minister gets ~alary for .

the public work done or the public duty performed b'y· him.

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'3. · T.hat the sai~. salary .is paid to the Chief Minister

· er Ui.t Miniiter from the Government fiinds".

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543

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It wnuld appea:r at glance that no argument was advanced and . A

none has h~en examined ·by the Constitution Bench bearing on the interpretation ~f the. expression 'Government'. in cl. (12)(a). It was assumed that salary and allowances paid to the Chief Minister are by ,Cbvernment. What does expression 'Government' in the cla.use con- note was not even examined. And it is on the aforementioned finding that the Chief Minister was held to be a public servant but that ~.oes B not· conclude the matter.

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This is not the end of the matter. The question ·may be posed thus: 'Even if M.L.A. receives salary and allowances under the rele vant statute, is he .in the pay of the Government'? In other words, what ct).:s !he ,expression 'Government' collflote?

There'is a short and a long [lnswer to the problem. Sec. 17 iP"c provides that 'the wor~ ·Goyern,ment' denotes the Central Gov~rnment or the Government of a State'. Sec. 7 IPC provides that· 'ever expres sion w'1i~h is explained in any part.of the Code, is ·used in every part ('f t1• (:'ode in conformity with the· explanation'. Let it be noted that u,1like the modern statute Sec. 7 does not provide"unless the context otherwise indicate' a phrase that prefaces the dictionary clauses of a modero ~tatute. Therefore, the expression 'Government' in Sec. 21 (11)(') must either mean the Central Government or the. Government of,a S:ato. Substituting the explanation, the relevant portion of Sec. 21 (12) (a) would read tl)us: 'Every p•rson in the ·pay of the Central . G ,v,rnmen t or the Government of a State or remune'rated by fees J_. ~ or commission for the performance of any public duty by the Central Gwetnment or.the Government of a 'State' .. At any rate, the Central G >vernment is out of consideration. Therefore, the question boils d0wn to this: ·whether M.L.A. is in the pay. of the Government of a State or' is r<munerated by fees for the performance of.any public duty by the Gowrnment of a State ?

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In the ctehate between the Presidential form.and Parliamentary •form of ,lemocracy, during t)le eariy days of the Constitutent Assembly,

the. bal.ance .tilted in favour of Parliamentary form of Government. G Mr. K. M. Munshi, one of the members qf the Drafting~Committee spoke in this connec;tion as ilnder : ·

· "We must not forget a very important fact that, during the last hundred years, In~.ian public life has largely drawn upon H the traditioq.s of British Constitutional Law . Most of us have

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looked· up to the British medel as the. best: Fe>r the last thirty or forty years, some hind of responsibility has been introduced in the governance of the country. Our constitutional traditions have become p3rlia~entary and we have now all our Provinces functioning more or l~ss on the British inod"J."<1 J

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fn Rai Sahib Ram Jaivaya K11p1ir & 01's. v. Th.e State af Punjab'"·

a Constitution Bench of this Court observed as under:

"Our Con'stitution. though federal iii its

structure, is modelled on the British Parlaiamcntai:y system whe1:e the execu tive is deemed to have the primary responsibility for the for mulatio'.1 of gover.1mentaI p01ic:y and its· transmis-:i0n into Jaw though the condition precedent· to tl1e ·'xerc;se of t"i' responsibi lity is its -retai"riing tJ.1e confidence of the legislutive branch of the State".

it does, of

It was further observed that "in the Indian Constitution executive as in England and the Counci' of Ministers wd1ave the same system of p1rlia·mcntary con;isting, as the members of the legislature ,is. like the British Cabinet, 'a ·hyphen which joins, a buckle which fastens the legislative .Part of the State to. the executive In Shamsher Singh & Anr.v. State of Punjali'• 1 , a seven part". Judges Bench unanimously overruled the dee ision in Sardari Lal v. Union tJj' l11c 1ia an.t. Gts. r4 J a11d held that 'our Constitution c111br: 1.--1ies generally th~ Pili-lia1ne11tary or C2binct systeti1 of Govrrnrnent of the British Model both for the Union and the States'. Thio view has not form of'Govern~ent been departed modelled on Bdtic'1 moc'.el. the executive, legislature an<l juciici2 I 11owers · It iS are· in the 1nain entrusted to separate instrumc11ts of.the St;:te. no~ for a 1nOment suggested that.thefe is strict or \vater-f1ght divi sion of powers, but the functions are certainly ctiviJ.ed. In Halsbury's Laws of Englan1j, Fourth Ec.ition, Yd. 8 para 81.3. sep.-raticn of exe cutive, Iegislittive an~. judicial pc\\1ers in tl·e Wrst1riin.stcr MrC.el have b~en adverted to. rt reads as under:

in parliamentary

from. N·JW

. "rt is clear that the powers of government arc c'.ivided . . T.he executive, legislative and judicial- po\vers arP in the tnain

(l) (See Constituent Assembly Debates, Ve!. VII p.· 984) (2) [l.955] 2 S.C.R. 225 a< p. 236. (3) [1975] I S.CR. Sl4. (4) [197JJ 3 S.C.R. 461.

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545

entrusted to separ~te instruments of the Stater and local govern ment is further administered separately. Thus the original con· c'·1tration of pow" in the· S ;voreign nci longer exists; in the eigthteenth century this divisibn of the p'ow~rs of government s"m'J.t0. b' suoh an ossenfrl'I c:uracteristic of the English Con-. ->titutio11 th:it it w1s made the basis for the doctrine of separation of pJw,,s." This doctrine, which is t0 the effoct that in a nation which has political liberty as the direct object of its constitution no one person. or body of porsons ought to be allowed to control the kgislative, ex~cutive and judicial powers, or any two of them, has never i!l its strict form corresponded with the facts· of English govornme"r1t mainly because, although the functions and powers of governm,nt are largely separated, the membership of the. sep1rate illgtrum~nts of state overlap. Only in one aspect of the <;on~titufrn can it b) s1id that th~ d0~trine is strictly adhered to, namely, that by tradition, convention and law the judiciary is insulated from p0litical matters".

PJrliament that ls the Legislature exercises control over the executive branch of the Government because it is a postulate of Parlia mentary form of G:>Vernment that Executive is responsible to the .&. r Vgis\,1ture. In. otha words. the Government of the country is con· trollect hy a ministry a·nd Cabinet chosen by the electorate which J.. . while rem1ining responsible to the elecforate is responsible directly .,,,,,.- t-1 th' Legi;lature and such effective means of exercising control is that any exp.ense from Consolidated Fund of the State must h 1ve been earlier placed before the Legislature. In Halsbury's La-ws o;· E1gla id, Fourth Edition, Vol. 34 para 1005, ii is stated that Parlia-

'* r.1'nt ex?rci ;es control over the actions of the executive government

and ti1e ·1d•.ninistration of the laws it has enacted in various ways, one sttch beiag by the d ictrine of the constitution by which supply is granted annually by the House of Commons and must receive legisla· tive sanction each yoar and the supply granted must be appropriated t·'.) the p:1rticular purposes for which it has been granted. It may also b·O noticed. that t::ie stafj; of the House of Commons is a.Ppointed. h the H.)uso of Commons Commission comprising the Speaker, the Y Lea,\er of the House of the Commons, a member of the House nomi· natect by the the Leader of the opposition and three other members app:Jintcd by the House. This Commission is charged with a duty to determine the._number and remuneration and. other te.rms and condi: tions of service . .This Commission is also _responsible for laying before

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SuPREME COURT REPORTS

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the House an estimate of the expenses of the Hoµse departments and ·of any other expenses incurred for the service of the House of Commons. (ibid P.ara 1.155).

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Let us turn to releva11t provisions of the Constitution. Part VI ·.of the Constitution .prov.ides ·that 'the'. executive power of the State ·shall be wsted in the Governor and shall be exercised by him either directly or through officers· subordinate to him in accordance with. the Constitution.'· C.hapter Iii in Part VI provides for State Legisla- ~ ture. Every State 'is to have ~ Legislature which shall consist of the Governor and. it can be unicameral or bicameral as the case may be. Where the State has a unicameral legislature, the assembly is called Legislative. Assembly .. Art. 170 provides for members of the Legisla- . · tive Assembly being chosen by direct election from territorial consii tuencies in the State. Arts. 178 to 186 provide for .officers of the State Legislatures such as the Speaker and Deputy Speaker of the Legisla tive Assembly and Chairman arrd Deputy Chairman of Legislative Council as the case may be, their powers, functions. and their either vacating the office or removal from the office. Art. 187 (1) prrovides that "the House or each Hou.se of the Legislature of a State shall hav• a separate secretarial staff'. Marginal note of the article is 'Secretariat of State Legisl:itnre'. Sub-art.(2) of Art. 187 provides that 'the Legisla- · ture of a State maf by laJ.v regulate the recruitment, and the· conditions of ser~ice of persons appointed, to the secretarial st~ff of the House or Houses of the Legislature of the State'. Art 266 obliges the State to set up.its Consolidated Fund. Art. 203 prescribes the procedure with · -... respect to .. estimates. The estimates as relate to expenditure charged upon tlie Consolidated Fund of a ·state shall not be submitt<:_d to the vote of the Legislative ·Assembly bufthe discussion in the Legislature is permissible_ ihereon. f!o~ver, so much of the said estimates as relate to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assei:nbly shall' have power to assent, .;, to refuse to assent, to any demand; or to assent to any demand subject' to a reduction of the amount specified therein. In other word,, Legislative A.sembly has complete power of purse. Art. 204 casts an obligation to introduce a Bill to provide for appropriation: out of the Consoli<;lated Fund_ of the State of all moneys required to meet-( a) the grants so made .by_ the Assembly; and (b) the expen~.iture charged on the Consolidated Fund of the State but not exceeding-in any case the amount shown in the statement previoJ1$ly laid before the House or Houses. A conspectus of these provisions clearly indicate that the Legislature enjoys the_ powe_r of

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547

. purse. Even with· regard to expenses charged on the Co~sbli4ated Fund .of the' State to. be set up under Art. 266, an appropriation bill has to be moved and adopted, undoubtedly, the same would be .non-· · votable, And it is not disputed that· salaries an'd al_lowances payable to M.L.A. are not charged on the Consolidated Fund of the State. This probably is an emulation of the situation in England where saiary and allowances of the members' of the l'adiament are not charged· .mnthe Consolid_a.ted· Fund. As a·. riccess~ry corollary, it _would ]ie· a votable .item. ·

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There thus is a. broad· division of functions such as executive; legislativ.e and judicial in our Co!1stifotfon. 'The ,Legislature lays down the broad policy and has the power of purse. The executive eJ<ecutes · · . the· policy and spe~ds from the Consolidated Fund of the State what Legislature ha_s sanctioned.· .The LegislatiVe Assembly enacted the Act .enabling to ·pay to its i;nembers salary and allowancts. And tlie members . vote the grant and pay the;;selves. In this background even if th~e i• an officer to disburse this paYmen:t 9r that a pay biHhas lo be drawl! · up ate nqt such faC!ors.. being decisive of the matter. That is ·merely '.a mode of payment, but the M1L.As. by a vote retained the fund ear . , marked for purposes ·of disbursal for pay and allowances payable to· 'thein under the relevant statute. Therefore, ev~ii'though M.L.A.·~ecei­ ves pay and· allowances, he is'not in.·the pa•, of'the State Government . b'cause Legislature of a. State cal!not be comprehended.in the·expres- ,sion 'State Goverllment'.

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This beeomes further clear from the provi"~i~n .contained in Art. 1·2 of the Constitution which provides that 'for purposes of Part III, unless· the co~text otherwise requires, ·~ihe ·State" includes the Govern, merit and Parliament' of India and the ·oovernment anci the Legislature ef each of the Siates atid all .local or· other authorities within the terri tory of India· o·r under the· control of'the· Government of !ndia'. The - c,xpressiori 'Government arid Legislfitllre', two ·5·eparate ·entities,.·.a~ · sought to be included iri ihe·expression 'State' which would mean that _otherwise they are distinct and separate entities, This conclusfon .is further reinforced by the factthat the e~ecutive sets up its own secreta riat, while Art. 187. provides for a ·secretarial staff of the. Legislature urider the. control of t_he Speaker, whose terms and conditions of the service. will be deteruii~ed by the. Legislature and not by the executive. · When ·all these aspects are pieced together, the expression 'Govern ment' in Sec, ii (12)(a) clearly denotes the executive and not the Legi slature. M.L.A. is certainly not in the pay of the executive. Therefore,

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the conclusio.n is ihescap2.ble that even though M.LA. receives pay ;rnd allowances, he can not be said to be. in the pay oftl1e Govermnent i.e. the exec_utiv_e. Th's conclus.ion would govern also the thin\ part -0f cl. (l2)(a) i.~. 'remunerate.I. by fees for performance of any pub'ic duty by the _Governm~nt'. In other words, M.L.A. is not remunerated by fees paid by the Goverm11ent i.e. the .executive.

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It wa! also con'tei1ded that M.L.A. is not performing an·y public du_ty. It is not necessary to examine thi.s aspect bee,, use .it would ·be rather difficult to accept anm;idly vide submissipn thaiM.L..A. is not. -performing any public. duty. Ho.Wever, it is unquestionable that he is

. i'.:. not performing any public duty either directrd by the Govencmcnt or i...t.

for tho Goyernment. He no d_oubt performs public duties _cast .on ·him . by the Coi1stitu[ion' and· his electorate. He thus 'discharges constfru~ · tional f~ndions for which ·he is remunerated by fees under the Ccnsti- tution and not. by•the Executive.

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It was flirther contended that oi1 the analogy of the decision in His Maje~ty tile King v. Boston & Ors}1 • M.L.A. would be a public · servant. In Boston's case, the allegation \v~s that Harris~n and Mit~ . chelmore paid to defendant Boston in his offici.itl crrpacit)' as a Member of. the Legisla}ive Assemblx of New South Wales and the la~ter car·· · ruptly accepted in thct capacity as inducqncnfto him ii: viclation cf his official duty t-0 use his .position as such m_ember; (a) to secure the acquisition. by the Government.of the State of New South Waies of certain e5t:\tes '.•nd the payinenffor ~ilch estc.tes·out of the public fmids of the Staie; and (b) to put pressure upon the Minister for Lands al1d . _.:) · · · othor officers of the Crown to acquire and pay f0r such estates. The 'contentiOii \~as that the 'agreeme11t between the.defendants might rave. .been to pay money to Boston to induc_e him to use his pcsitici1 .ex- . elusively outside Parliament, and not by vote or speech in the Assembly,. and thadhe transaction in connection with ·which he was io use. his positioµ to put pressure on the Minister miglit consistently with the information, be one which would never come before Parliament and .which, in: his' opinion ancLin the opinion of those who paid.him, \~as highly beneftcfal to the State; ·that such an agreenient . would not · amount to a criminal offence, and that consequently the ·information is bad .. Negativing this conteRtion,; it was held that •it is scttl_ed law. that an agreem~mt or coinbination to.do an a_ct-which tends to produce a. public mischief amounts to a ·criminal conspiracy~ It was further

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549

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held.by the majority that.the payment of money to, and the receipt • A of money by, a member of Parliament to induce hiin to use his cfficial . position, whethc•r inside or outsi_de Parliament, for the purpose of in· fluencing or putting pi·essure on a Mini·ster or other officer of the Crown · to enter into or cnrrY ollt ·a transaction jnvol'ving pay.1nenr of-nioneY , out of the pliblic fmids, _are acts tending to the public mischief, and an , ., . agreement or combination to· do sucli acts. amounts to a criminal bffence. The quostiOn has been' examined in the light of the settled Jaw that an agreement or combination to do an act which, tends to· produce a public mischief am?unts to a criminal. conspiracy . .Isaacs · and Rich, JJ posited the question: how far a memberof the Legisla- tive Assemblv of New. South Wales can, without incurring any real · perso11al resp~nsibilityc-that is-other than political rcjection,:.....~ake c his public position the. subject 9f profitable.traffic by engaging in depart' ·mental intervention on behalf;of individuals in return for private pccnniary c01;sider!llion to himself? The concurring judgment exami- , · ned the .general position of a member of Parliament and then-proceeded to examine the special provisions of the relevant clause. On this point it was concluded thai the fmidamental obligation, 'which is the key .· D to thls case. is the duty to serve and, and with a single-minded1iess for ihc welfa.re of the community. It wa• . further observed that a member of P&iliament is, therefore, in the · highest seilSe, a sei'vant'or the S.tate; his duties are those a·ppertaini·~g to the position. he fills, a position of ;10 transient or t~mporary exi~ stence, a position fo(m;ng·a refognizcd place ·in the constitutional .machinery of govern1hent. It was also held thathe holds an office. In the.third cirncurring judgment of Higgiris,.J, ,\.hile concecl.ing that the m'mbcf of Parliament has to discharge;,. duty in which the public is interested, but after examining provisions of.the public Service Acts, it was held tl~at he is not a public officer' withi11 the meaning of that Act . becanse he is n6t required to obey the commands of the King or of the departmental heads. It was. h~wever mncluded that as .a member ofl>ar!iament, he holds a.fiduciary relation towards the public, and that · is enough. The minority judgment of Gavan .. Duffy· and -Starke, JJ . . clearly proceeds on t~eir holding that a member of Legislative Assembly of New South· Wales is not the holder of a publii: office wiihin th\' meaning. of the. common law and, even if he. could _be regarded as the holder 'of such an office, the acts charged as intended to be done by the defendant Boston, ho\vever improper they may be;\Vould not 'Ile mal- ... versation in his oifice or acts done in his office, unless they wi:.re done in the discharge of his legislative fundions. As we are concerned· with legisiati~e enactment-Sec. 21{12)(~), tliis decision .based on the

in. serving, to act with fidelity

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concept of .common law and so1ne of the · slatl!tes as prevailing in Australia would not be very helpful: It mav be mentioned while com paring"M.L'.A. and M.P. in India with M.P. in U.K. that the M.P. iri . . U.IC. is neither covered by the Prevention of Corruption Act, 1906.not .. the Prevention of C6rrugti6n Act, 1916. It may also b.e mentioned> . that The Public Bodies Corrupt Practices Act, 1889 does .not cove~ fy.{.:f in U.K. 'The acceptance by artymember of either House of Par ' liam~n~. of.a bribe to influence him in his conduct as such member m; of any.fees, compensation or reward in connectio[l }vith the promotio!l of, or opposition to any bill, resolution, matter or .thing submitted or intended to be. submitted to the Bouse or any committee a breach of privilege:<» Attempts to bring fyl. P: in U.K. either under the provisions of the Preverition of Corruption Ad or the Public " Bodie3 Corrupt Practices Act· ha vc not met with success. Even such modicum of decency in public life 'as disclosing ;elevant, pecuniary interest or benefit of whatever nature .whether direct or indirect that. he may have had or may be ex~t;cting to have while_ participating in a·debate or proceeding in Bouse by M.P. in '[J.K. waS'stoutly r·esisted · in .1974. But Paulson Affair stirred many and Royal Commission on Corri1ptiori in.Public Life headed by Lord Justice Salmon was set up. The Commission inter alia recommended in 1976 that M.Ps. 'should be brought within the scope of the c.orruption laws regarding their actions : inside as well o.utside Parliament. No follow up legislative. action

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appears' to have .been taken since. then.

IfM,L.A. is not In ~he pay of the Govern~ent in the sense· oL../~ .·

Executive government or is·npt remunerated ·by.fees ·fo.r performance Of any·public·duty by the Executive. Govetnment,.cert~inly he w9uld not be comprehended 'in the expression 'public servant' within. the. 111eaning of the expression in cl. (12) (a). Be is th.us not a public servant within the meaning of the eJCpr~ssion in cl. (l:i) (a). This conclusio'n ·-t- reinforces the· earlier conclusion reached )Jy us. after examining. the· historicai evob.1tion of cl.· (12) (a). ·

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· Mr.·Singhvi, however; ·strenously coµtended that M:L.A. would G· be comprehended in cl. (3) or cl. (7) of Sec. 21 IPC to be a public' servant He went so far as· to suggest that, his emphasis would have been more .on cl: (3Jcomparatively and not on Cl. (12) (a). "Therefore, it may now · be "examined whether M.L.A. is comprehended either in cl. (3) or ti. (7). '."f of Sec. 21 IP'C.

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(lJ. See Earokine May P~rliamentary .Practice 20 edition, page 149.

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Re (e) : Cl.(3) of Sec. 21, as it at present ~lands, takes within its purvit<w 'every Judgdncludili.g any person empowered by law to dis-. · ·. charge whether by himself, ot as a 111ember of any body of persons, a~y adjudicatory. fancti~ns. Pri~r to its amendment -by Act 40 of 19.64 the cl. (3) read simply :Every judge'. Cl. (3)' was amended to read, ·as it at 'present stands, pursuant to. ihe recommertdatioµs· of the Santha nam Committee. In Para 7.6 of the Report, it was recommended t)iat . 'a further category should-be added to include all, persons discha-rgi.ng · adjudicatory·functions under .any Unfon or State Law for the time being· in force'o . Wlththis end in view,. the Committee recommended that cl. (3).should read: 'Every Judge including any person entrusted with adjiidicatciry functions in the course of .enforcement of any law for.the time being in force'. At the B.ill stage, t)le clause was recast so as to give full effect to· tM'recommendation of'the Committee and ihi• equally, becomes clea~ from the Statement of O):Jjects and Reasons . accompanying Blll No. 67 of 1964 wh.ich when adopted became Act 40 of 1964. In para 2 (a) of the Statement of Objects and Reasons, it is stated ,that .'the definition of public servant in Se.c .. 21 of ihe Ihdian .. · Penal Cod~ is proposed. to be amended so as to bring within"its purview D certain _additional' categories of persons . such as persons performing . . adjudicat.ory functions under any law, liquidators, receivers, commis" sioners etc.' If we recaH the earlier discussion ·about the history of evolution of cl, (12l(a) and ·the entire range of tecommendasions of the .SaiJ.thanem Committee, it can·be. confidently sa.id the M.L.A: . was rte~er inten?e<l .to be brought 'within the conspeetus of clauses of Sec. 21 so as to clothe him with the· status of a public servant.

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Indepondent of.this historical evolution an!l focussing atte~tion on the)anguage of cl. (3) it is diftiCult to hold that :M:L.A. as a·mefllber of a body' of persons such as the 'Legislative Assembly perform~ any· ad.judicatory function$ empowered by law to discharge that function. In fact, Santhanam Committee contemplated covering such officers like. liquidators, receivers .• commissioners etc. each of whom· is em powerd by different statutes to discharge such adjudicatory functions as .prescribed by the concern~d law.

·

. .It was how,vor, contended· that expression 'Judge' has. been defined in Sec. 19 IPC to denote 'not on)y every person who is offidaily designated as a Judge, but also every prson who is empowered by law . to give, in any \egai proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would.be definitive, or -a judgment, if confirmed by some other authoritj, would be definitiv1l,

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(1984] 2 C.S.R.

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or w;1o'is one of a bq_dy of persons:whiclNi;d.v of 'persons is ~mpower- · ed bv hw lo give such aj1c\gm'11r.'and in cl: (3) this definition cannot be subStituted b-:cause it' is i·.n 'inclusiv~ dCfiriition ~hich 1neahs it is ~xte:1si~e in .character. ;\cc.cpting .tl~c position .Lhat. inclusi_ve.d~~ni- tioit extends the specific meaning of the expression which it wo\lld not othenvis.e bear, it is necessary to determine whether this extensiol) of to'•. cover within the its umbrealla .M.L.A.· on the ground · that while· voting upon a motion for breach of privilege or for contempt of the .House, he is discharging adjudicatory functions: and that. he is s~ empowered by ~ .

e~pression

'Judge'

is' so

.wide

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. la.w .to d~ so. When with the pcr;,nission' of the Speaker, a motion for breach of privilege is moved i.n the Legislattve Assembly or a motion for taking action for co•. tempt 'of the House is nioved, undoubtedly,: every .member of the House has a right to participate ·and after the . motion is debated upon, the maioritYvote is recorrted. as a· decision· of the H;use. D.oes thitt make M.L.A. a person as a member of a body persons: who discharges adjudicatory functi0ns? The definition of expressio'n 'Judge' comprehends, adjudication in an'y legal p'roceeding; civil or c;iminal and in which tJ1e, person as a Judge is· empowerd to give a definitive judgment. It is. difficult to accept the 'subpiission that the proceedings before .the House either upon a motion for breach of privilege br for contempt is a ~ivil or· criminal proceeding, as these terms ordinariiy connote. A rnotion for breach ·of privilege or for coi1telnpt 'of \he House is brought before the House when the mover feels' that ,the powers, privileges and 'immunities of th~ f(ouse have bee"' violated. «the penal jurisdiction of the House is not confined to their own Mem- bers norto ·offenc.es committed in. their presence, but extends to all contempts;of the Houses; whether committed .by Members or by per-. . sons who 'a.re not .Members, irrespective of whether the the offence jsccimmitted within the House or beyond its w~Us'. (See Earskine May :Parliamentary Pra¢tice 20 ed .. p. 122). This power of commitment is truely described as a. key-stone of Parliamentary,Practice. lt wa• ·pointed out tbat 'the origin of the power which: is judicial in 'its nature is ·to be. found naturally in the medieval conception of Parliament as primerily ,;:court of justii;:e-the H;gh.Court of Parlfamenf (ibitl page· · 124).' It is however; difficult to say'tnat a State Legislature functioning under 'our Constitution. can be described as High Court of Legislative Assembly. 'in blindly tailoring our Constitutional Law to .the Parlia mentary Practice in U.K., one is. apt to ovedook the obvious 'fact ·that House,of Lords always possessed the judicial power as any Court of Westminster. Hall. (ibid p. J24). In this connection 'in. Special

'Tile . .House ha.s the power ,to pm{ish for r,o!ltempt' andJ

r,

·• 553 _R.s .. NAYAK v .. A.R. AN\ULAY(Des.ai,},) Re/ No. 1 of I 964, 0 ' · it wa~ clearly stat~d.that the result of the provi- . sion co.11t:,;ncct in tho latter part of Art.· J94(3) wa; not.intended to be co1ifer on the State Legislatures in India the status of a superior Court of Record. Jt ·was further ooservcd. that ',he Home and . indeed all Legislative. Assemblies in India never discharged ai1y judicial functions aud their historical and constitutional background does not support the claim that they can ·be regarded as Court of Rec9rd in any sense'. Undoubtedly, the Legislative Assembly i·n view ~f the provisions con tained Jn Art. 194(3) has. the poi-er to i1iflict punishment for breach . ·of privilege and for contempt of ·the House. And when a motion is. moved ~omplailling breach of privilege or for taking action for the contempt of the House, the me_mbers would participate in the debate, analyse evidence and absence t11ereof in support of the motion and against_ the motion and ultimately decide as a b0dy by a ·democratic process whether the· motion is affirmed or rejtctc,'.. The ,question is · whether'this process can be styied as an adjudicatory pr~cess discharged· by. M.L.A. as empowered by l~~w. If th_e expression 'law:.'w~re to in

clude the Constitution; certainly this power is enjoyed by .M.L.A. _but expression 'law' ordinarily.does not include the ConstiUion. Art. 13(1) of tho.CJnstitutiouprovides that 'a!l-l;iws in force in the territory of. India iih1llediatelY before the co1:ii.~encc1nent. of the Con.stitution, in so far as they are .consistent with the provision of° Part III shall, ·to the extent of inconsistency be. void.' Sub-Art. (2) impos~s a restric,. lion op. the _legislative pJWer of the· State to make any law' whih te.kes away or abridges the: rights conferred· by Part Ii! aml .any law made in contravention of sub-Art (2) shal{ to the extents of the contraver ·'Jaw' as.used here would.be law other than. tion, be void 'Expression Constitution, in other. words, law enacted in exercise of the legislative power. The majotity view in /. C. Gof(lknath. v. State of Punjab;u> · that ~mondment of the Constitution is part of the legislative process.does not survive as vali_d any longer because.it was admitted that Constitu tion _(Twenty Fourth) Amendment Act, 1971 in so far as it tansfers ,the power fo amend the Constitution from the residuary entry or Article 248 of the C0nstitution to Article 3'68 is valid. After so .saying the -trend of uiscussion ih various judgments in H.H. Keshvnanc/OBharathi. Sripac/anaga galavanu v. State of Kera/a and another''' ~hows. that when the power amend the Constitution _is exerci>ed by Parliament, it exercises Constituent power arid this is independent of the· oridinary

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(1) [196,] 1 S.C.R°. 4ll at pages 490, 491 and 49.2. (2) [19671 2 S.C.R. 672. ··' (3) (1973] Suppi. s.c.R. 1. . • •

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l9gislative process. And this. appro'lch is borne out by a ref~rence to . the definition of expression '.Indian law' in the General ·clauses Act whic!1. does not inolude·the C)nstituttioiL' A passing reference may arso be mar\' to th·e form of oQtl} prescribed for a Judge of the Supreme Court 'ahd the Judge of the High Court in the' Third Schedule which.

·.separately re.fore to the Constitution :ind the laws.

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P~rtidpation in a d~bate on ~ motio.n of breach of privilege or for taking action for contempt of the House and· voting· thereon is · a constitutional· function d\schargetl by the members and therefore,, it cannot be said that such adljudicatory function if.it can be so styled,' constitutes adju_dicatory function undertaken by l\'.[.L.A. a.• empowered . by law. 'viewed from this angle it is not necessary to examine the contention' that adjudication and a resultant judgment. presupposes a !is bet,;,een persons other th~n adjridipitor, and M.L.A. has n~_ lis. before him as a body of persons when passing upon the. motion for contempt or bre~ch of privilege. Accordingly the sumbi•sion that ·

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. ; the accused would be a public servti.it .within the meaning of the ex- • pressiimin ci. (3) of Sec. 21 IPC must be rejected.

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The last iimb of the submission was that at any rate, the accu••rl. · . would be a public servant within the meaning of cl. (7) of Sec. 1!1 IPC,. ·'which takee within its ambit 'every person who holds any office by virtue of which he is empowered to place or keep any person in confi· .

0

'nement'. This limb of the submission \Vas not placed for consideration .. of the learned'tr,ial Judge. And it has merely to be stated to be rejected.

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We, however, did not w~nt to rejecdt on this narrow ground. Expand- ;-{''

,)ng this contention, it was urged tha.t M.L.A. is empower~d to adjudg• : a person guilty of breach of privilege .or contempt of the House and when prison sentaence is imposed to keep him in confinment. Assum~. illg for the purpose of this argument that M.L.A. hold·s an, office, is lie a person empowered to pface or. keep any person in c"onfinement. Power to impose punishment is independent of the power to keep a , person in confinement. First is the power to impose a 'prison sentence. but second is the power flowing from the execu!ion of the :Sentence to place or keep any person in confbement meaning thereby, the'.e is an execution 'Of' wamint. Persons whose duty it is to deprive a person tb . deprive· him of his liberty to remain directed 'to be imprisoned free and to keep. or place him in confinement. in drie .. execution· of the ·warrant would be comprehended in cl~ (3). It is difficult to accept th.e submission that M.L.As. as:a body· can keep or pface any person: in. confinemint. Reference was, however, made to some of the passages

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R.s. NAYAK v. A.R. ANTULAY (Desai, J.).

in Parliamentary: Practice . by farskine May, 20th Edn. ·as alsq to Practice and Procedure.of Parliame11t, Jhird Edition by Kaul and; Shakdher, p, ·20s .. The authors-.observed at page 208 that 'each House . of the Legislature of-State, has the power to secure the attendence or . persons pn matters of privilege and to punish. forbr~ack of privil~gy or contempt of·the House and commit the offender to custod.y or·pri· , son'. Afpage 212; it is observed. that 'each House has the power to '\ . ·.·enforce it• brders including the'power for its officers to break open + the doors o[ 'a house for that purpose, whert ;;-ecessary, and e~ecute .L its warrants in connection with contempt proceedings'. We f~il to see --.,~ .. ho.w these· olJ.servations 'assist' us in. understanclirlg the expression 'e·m~ ·powered to place or keep ~ny person in, corifin.ement.' Broad.ly stated,~ the expression comprehends Police arid Prison Authorities or those under an. obl_igation by law or by virtue of office to take into custody and keep in confinement any person:. in MP: Dwivedi ~s casr!, this.· Court observed that Seventh arid Eighth clau~es of Sec. 21 deal with· persons who perform mainly policing drities. To say that M.LA. by virtue of his office ·is performing policing or prison officers' duties would.be apart form.doing vio,lence to l~~guage'!owei"ing him in itatus. Additionall&', c!. (7) does not speak of any adjudicatory function. It <appeai:s t6 c61nprehcnd situatiOns 'Nhere ·as p'ri1iminafy to or ttri end~ product of an adjudicatory function in a crirr1i;1~! ·.case·, whicl\ may .. 1ea.d to i;11Position:or_a:.priS9·n senten~e, and a person ·in: exercise .or the duty to be discharged by hiin by virtue of his office places .or keeps any pers;n in confinement. The decisio11s in Homi .D. Mistry v. Shree Nafisul H1s;an & Ors. " 1 ,' Harendra. NathBariia v. · J)ev 'Kanta .. Bawa & Ors.(•' and JHward Kzlley v. William Carson, John Kent& Ors.'? 1 ·,hardly shed a~yJight on this' aspect, Therefore, th,e submission that · M.L.A. \vould .be CQmpreherided in cl. (7) of- Sec. 2·1 so _as to be a _public ;er.van! must be,rejected. .

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Having. metic~lously examined the subm'issfon .. from diverse . angles a.s . presented to· us, it appears that M._L.A. is not a public ser- ~ vant withil). the m'aning of the 'expression in cl..(12)(a), cl. (3).and cl.(7)

. of Sec. 21 IPC. · ·

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. Re: (f) & ·(g) : The learned Judge· after recording a tindfog tha(M.L.A. is a ·public _servant within the comprehension of ct (12)(a) ,and further recording the finding that as on the date.on which the Court

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·(I) ILR 1957 Bombay 218, {2) AIR 1959"Assam, 160, · (3) (184l-42) 4 Moore Privy Council Cases 63, _:..]

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. was· invited to take cognizance; the accused was thus a public servant . proccc,ded to ·examine wl1ether sanction under Sec. 6 of the 1947 Act is·a pr~-requisite to taking cognizance of "offences enumerated hi. Sec. 6 aJ'leged lo have been committed by him. He reached the con clusion ti}at a sanction is necessary before cognizance can be taken. As a. coroJlary. he proceeded to illvestigate and identify,"which is the sanctioning authority \Vho would be able to give a valid sanction as required by Sec. 6 for t.he . prosecution of the accused in, his. capcity ' as M.L.A;? We have expressed our conclusion that where ·offences · as set out in S~c. 6 are alleged to have been c~mmitt~d. by a public servant, sanction of only that authority would be necessary who ·would be ·entitle~ lo r<;niove him from that office which is alleged to have been inisused or abused for corrupt motives, If the e.ccused has ceased to hold that office by the date, the co_urt is called· upon to take cogni z~nce of the offences alleged to llavebeen committed by such public· servant, no sanction under Sec. 6 would be necessary despit~ the fact that he may be holding any other office on the rdevant date which inay make him· a.rublic servant as understood in Sec 21', if there. is no alle gation that office has been abused or misused for corrupt motives. The allegations in the complaint are all to the e.ffect thatthe accused misused.~~ abused his offi:e as Chief Minister for corrupt motives. •· By the time the Court was called upon to take cognizance of those offences, the accue·'d had ceased to' hold the office of Chief Minister. ·The sand ion to 'prosecute him was granted by the Governor ofMahara-, shtra b.ut this ?spect we co,nsider irrelevant for concluding that no sanction was necessary to prosecute him under Sec. 6 on the dare on· which the' court took .cogniz1nce of the offences alleged to have' been committed by the accused. Assuming that as M.LA. the 'accused ·would be .a public servant under Sec. 21, in the absence of any allegatiori that he 1nisused .or abused h;s office as M.L:A. that aspect. becomes immaterial. Further Sec. _6 postulates exist,nce· of a valid sanction · ·for prosecution of a pi..tblic servant for c\ffences punishable unct·e·r Sec~ . . :161, 164, 165 !PC and Sec. 5 of the 1947 Act, if they are alleged to have · .-bce.n coinmitted _by a public servant. Jn' view of our further finding that.M.L.A. is not a public servant within the meaning of th,e expres sion in Sec. 21 TPC, no saµciion iS necessary tO prosecute hin1 f<.. r thb offences alleged to have been committed by him . .

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fn view of the c0.1;clusions reached by us, we consider it unneceg sary to as~ertain· which wo~ld be. the authority competent to sanction prnseeution of M.L.A. as envisaged by Sec. 6, thought it must ·be fra11kly confessed that considerable time was spent in the cl.eliberati.ons

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557

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in search of competent sanctioni<Jg authority. The vit;J question has . beco1ne one of' academic interest. W_e propose to adhere to" the accumu lated wisdom which has ripened· into a settl~d practice of this Court · not to' decide academic questions. The question is:left ope~. .

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Before we conclude let it be clarified that more often in the c~urse . . 0 t'this judg,'.nent, we have used .ihe words 'Office of M.L.A.' H wal debated whether the M.L.A. holds seat or office ? O,lf use of the ex pression 'office' should not be construed to mean thai we have accepted that the position ·of M.L.A. can be aptly described as one holding- 'pub!.ic 0 -~e·· or ·office' for. that r1attCr. ·.

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. To sum up, the learned special 1uclge was.· clearly in. error in holding that M.L.A. is a public servant _within the meaning of the .. ,. · _expression in Sec. 12(a),and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majprity .of the members was a cond.itiori precedent to ta](ing ·cognizance of offences conimitted by the.accusxl. For the reasons herein stated both th~ conclusions _are wholly unsustainable and must be quashed and set aside .

•

· This .appeal accordingly succeeds and .is allowed. The order and decision cif the ]earned Special Judge Shri R.B. Suk c\atecl July 25. '1983 d.ischarging the accused-in Special C'se Ne. 24 of 1982 and Sp:cial ·Case No. 3/83.is hereby set aside and tbe trial ·shall ·proceed further from· the stage ;;-here the accused w~s cl.ischarged,

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The accused was the Chiel lVrinistcr of a premier State-the State . of Maharashtra.'By·~ prosecution launched as early ai on Sepiember 11, 1981, his character and integrity came under a cloud. Nearly 2}/ years have rolled 1:.y ·and inch

the case has not. moved an

-t· further. An cxpe'diti~us trial is ptimarily in the inte~est of the · accused and a manc'.ate of AJ'l. 21 .. Expeditious d.isposal of a criminal case is in the interest of both; the prosecutiorf ~nd the accused. There, .fore, SpcciUI Case No. 24 of 1982 and Special Case No. 3/8'3 .penr.ing in the C,6urt r,f Special Judge, Greater Bombay Shri R.B .. Sule are ·withdiawi1.and transferred to the High Court of-BombBy with a request tO.the lea'r~1e<l ChiefJus_tice to assign these two·cases-tn a sitti1~g Judge of thc,High Court. On being so ·a>Signed,'the learned Judg<; may pro ceed to expeditiously dispose cf the cases preferably by holding the ·

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H.S.K.

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Appeal allowed. ·

II