Supreme Court of India
ABHAY SINGH CHAUTALAversusC.B.I
- Citation
- 2011 INSC 448
- Decided
- 4 July 2011
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
When a public servant has ceased to hold the office he is alleged to have abused at the date of cognizance, no prior sanction under Section 19 of the Prevention of Corruption Act is required, and the ratio laid down in *A.R. Antulay* remains binding.
Summary
The appellants, Abhay Singh Chautala and Ajay Singh Chautala, were tried for offences under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, alleging accumulation of disproportionate assets while serving as Members of Legislative Assembly. No prior sanction under Section 19 of the Act was obtained, and the Special Judge held that the charge‑sheet did not allege abuse of the appellants' current office, so sanction was unnecessary. The High Court upheld this view relying on the precedent set in *Prakash Singh Badal v. State of Punjab*. The appellants argued that the earlier decision in *A.R. Antulay v. R.S. Nayak* was obiter and per incuriam, and that a literal reading of Section 19 would require sanction irrespective of the office abused. The Supreme Court reaffirmed the ratio in *Antulay*, holding that when the accused does not hold the office he allegedly abused at the date of cognizance, no sanction is required, and that the earlier decisions form settled law. Consequently, the appeals were dismissed.
Issues considered
- The necessity of a prior sanction under Section 19 of the Prevention of Corruption Act when the accused has ceased to hold the office he allegedly abused at the time cognizance is taken.
- Whether the relevant date for determining the need for sanction is the date of cognizance of the offence.
- Whether the judgment in *A.R. Antulay v. R.S. Nayak* was obiter dictum or decided per incuriam and thus open to reconsideration.
- Whether a Member of Legislative Assembly is a 'public servant' under Section 21 of the IPC.
- Whether plurality of offices held by a public servant requires multiple sanctions from each removing authority.
- Interpretation of the terms 'public servant' and 'a person' in Section 19(1) and the effect of Section 19(2).
- Whether a literal interpretation of Section 19(1) would lead to absurd or undesirable results.
Legislation cited
- Indian Penal Code, 1860s. 109, s. 21
- Prevention of Corruption Act, 1988s. 10, s. 11, s. 13(1)(e), s. 13(2), s. 15, s. 19, s. 2(c), s. 6, s. 7
Subjects
Prevention of Corruption ActSection 19 sanctionpublic servantcognizanceabuse of officeMLAobiter dictumper incuriamstare decisisinterpretation of statutesplurality of offices
Judgment
[2011) 10 S.C.R. 949
ABHAY SINGH CHAUTALA A
v.
C.B.I.
(Criminal Appeal No. 1257 of 2011)
JULY 04, 2011
B
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Prevention bf Corruption Act, 1988: s.19 - Interpretation
of - Previous sanction for prosecution - Appellants were tried
before the Special Judge, CBI for offences u/ss.13{1)(e) and C
13(2) of the Act rlw s.109 /PC - Allegation that while working
as Members of Legislative Assembly they had accumulated
wealth disproportionate to their known sources of income -
However, there was no sanction for prosecution u/s. 19 of the
Act against the appellants - Objection raised regarding the o
absence of sanction - Special Judge held that the allegations
in the charge sheet did not contain the allegation that the
appellants had abused their current office as Member of
Legislative Assembly and, therefore, no sanction was
necessary - High Court upheld the order by placing reliance E
upon the judgment of this Court in Prakash Singh Badal -
Justification - Plea of appellants that the judgment in Prakash
Singh Badal as also the relied on judgment in A.R. Antulay's
case were not correct and required reconsideration by a Larger
Bench - The appellants contended that the law declared in
A R. Antu/ay was obiter dictum; that the said case was decided F
per incuriam of s. 6(2) of the Act, as it therein existed and
further that, in effect, the decision in A R. Antt.ilay added a
further proviso to s.19(1) of the Act which was impermissible
- Held: In Antulay's case, the Court held that the relevant date
of sanction would be the date on which the cognizance was G
taken of the offence and that since the accused in that case
did not continue to hold the office that he had allegedly
abused on the date of cognizance, there was 'no necessity of
949 H
950 SUPREME COURT REPORTS [2011] 10 S.C.R.
A granting any sanction - The Court held so in the most
unequivocal terms - It cannot be said that the question
decided by the Court regarding the abuse of a particular office
and the effects of the accused not continuing with that office
or holding an a/together different office was obiter - In fact, it
8 is on that very basis that the judgment of A.R.Antulay
proceeded - The decision in Antulay's case has been
followed right up to the decision in Prakash Singh Badal and
even thereafter - The law settled in Antulay's case has stood
the test of time for last over 25 years and as per the maxim
C stare decisis et non quieta movere, it would be better to stand
by that decision and not to disturb what is settled - As regards
the contention that Antulay's case was decided per incuriam,
it is not as ifs. 6(2) of the Act as it then existed, was ignored
or was not referred to therein, in fact, the Bench had very
specifically made a reference to and had interpreted s. 6 as a
D whole - Merely because a concept of doubt is contemplated
in s. 19(2), it cannot mean that the public servant who has
abused some other office than the one he is holding could
not be tried without a sanction - The concept of 'doubt' or
'plurality of office' cannot be used to arrive at a conclusion that
E on that basis, the interpretation of s.19(1) would be different
from that given in Antulay's case or Prakash Singh Badal -
The argument regarding the addition of the proviso must also
fall as the language of the suggested proviso contemplates
a different "post" and not the "office'; which are entirely different
F concepts - It cannot be said that the decision in Antulay's case
and the subsequent decisions require any reconsideration -
Even on merits, there is no necessity of reconsidering the
relevant ratio laid down in Antu/ay's case - The High Court
was absolutely right in relying on the decision in Prakash
G Singh Badal to hold that the appellants had abused entirely
different office or offices than the one which they were holding
on the date on which cognizance was taken and, therefore,
there was no necessity of sanction uls. 19 of the Act - Maxims
- "stare decisis et non quieta movere".
H
ABHAY SINGH CHAUTALA v. C.8.1. 951
The appellants were tried before the Special Judge, A
CBI for offences punishable under Sections 13(1)(e) and
13(2) of the Prevention of Corruption Act read with
Section 109 of IPC in separate trials. It was alleged that
both the accused-appellants while working as Members
of Legislative Assembly had accumulated wealth B
disproportionate to their known sources of income.
Admittedly, there was no sanction for prosecution
under Section 19 of the Act against both the appellants.
An objection regarding the absence of sanction was C
raised before the Special Judge, who held that the
allegations in the charge sheet did not contain the
allegation that the appellants had abused their current
office as member of Legislative Assembly and, therefore,
no sanction was necessary. This order was challenged
by way of a petition under Section 482, Cr.P.C. before the D
High Court. The High Court dismissed the said petition
by placing reliance upon the judgment of this Court in
' Prakash Singh Badal.
The appellants contended before this Court that on E
the day when the charges were framed or on any date
when the cognizance was taken, both the appellants were
admittedly public servants and, therefore, under the plain
language of Section 19(1) of the Act, the Court could not
have taken cognizance unless there was a previous F
sanction under Section 19 of the Act. The appellants
further urged that the judgment of this Court in Prakash
Singh Badal as also the reliance on judgment in A R.
Antu/ay were not correct and required reconsideration
and urged for a reference to a Larger Bench. G
In Antu/ay's case, the Court had held that where a
public servant holds a different capacity altogether from
the one which he is alleged to have abused, there would
be no necessity of sanction at all. The appellants
H
952 SUPREME COURT REPORTS [2011) 10 S.C.R.
A contended that the law declared in A R. Antulay was obiter
dictum; that the said case was decided per incuriam of
Section 6(2) of the Act, as it therein existed (and which is
pari materia with Section 19(2) of the Act) and further that,
in effect, the decision in A R. Antulay added a further
B proviso to Section 19(1) of the Act which was
impermissible.
Dismissing the appeals, the Court
HELD:1.1. In A. R. Antulay's case, the Court held that
C the relevant date of sanction would be the date on which
the cognizance was taken of the offence and that since
the accused in that case did not continue to hold the
office that he had allegedly abused on the date of
cognizance, there was no necessity of granting any
D sanction. The Court held so in the most unequivocal
terms. It cannot be said that the question decided by the
Court regarding the abuse of a particular office and the
effects of the accused not continuing with that office or
holding an altogether different office was obiter. In fact it
E is on that very basis that the judgment of A.R.Antu/ay
proceeded. [Para 20) [980-D-F]
1.2. This finding is buttressed by the decision
reported in Balakrishnan Ravi Menon which decision came
almost immediately after Prakash Singh Badal case.
F Whether the finding given in the judgment of Antulay's
case was obiter was the question that directly fell for
consideration in that case. The Court unequivocally
rejected the contention that the finding given in Antu/ay's
case regarding the abuse of office of Chief Minister was
G obiter. In Antulay's case the complainant had specifically
and basically raised the point that since the accused had
ceased to hold the office of Chief Minister on the date of
cognizance, there was no question of any sanction and
that was the main issue which was decided in Antu/ay's
H case as the basic issue. The finding given in Antulay's
ABHAY SINGH CHAUTALA v. C.8.1. 953
case thus cannot be said to be in any manner obiter and A
does not require reconsideration. [Paras 22, 23) [981-C-
G]
1.3. Further, the decision in Antu/ay's case has been
followed right up to the decision in Prakash Singh Badal B
and even thereafter. The law settled in Antu/ay's case has
stood the test of time for over 25 years and it is trite that
going as per the maxim stare decisis et non quieta movere,
it would be better to stand by that decision and not to
disturb what is settled. [Para 24] [982-D-E]
c
1.4. The appellants thereafter contended that the
decision in Antu/ay's case is hit by the doctrine of per
incuriam. In support of their argument, the appellants
contended that in Antu/ay's case, Section 6(2) of the Act,
as it therein existed, was ignored. The argument was that D
Section 6(2) which is parimateria with Section 19(2) of the
Act provides that in case of doubt as to which authority
should give the sanction, the time when the offence is
alleged to have been committed is relevant. The further
argument was that if that is so, then the Act expressly E
contemplates that a public servant may be holding office
in a different capacity from the one that he was holding
when the offence is alleged to have been committed at
the time when cognizance is taken so as to cause doubt
about the sanctioning authority and thus, there would be F
necessity of a sanction on the date of cognizance and,
therefore, in ignoring this aspect, the decision in Antu/ay's
case has suffered an illegality. This argument is basically
incorrect. In Antulay's case, it is not as if Section 6(2) of
the Act as it then existed, was ignored or was not referred G
to, but the Constitution Bench had very specifically made
a reference to and had interpreted Section 6 as a whole.
Therefore, it cannot be said that the Constitution Bench
had totally ignored the provisions of Section 6 and more
particularly, Section 6(2). Once the Court had held that if H
954 SUPREME COURT REPORTS [2011) 10 S.C.R.
A the public servant had abused a particular office and was
not holding that office on the date of taking cognizance,
there would be no necessity to obtain sanction, it was
obvious that it was not necessary for the Court to go up
to Section 6(2) as in that case, there would be no
B. question of doubt about the sanctioning authority. It
cannot be said that the Act expressly contemplates that
a public servant may be holding office in a different
capacity from the one that he was holding when the
offence is alleged to have been committed at the time
c when cognizance is taken. That is not the eventuality
contemplated in Section 6(2) or Section 19(2), as the case
may be. The view taken in Antu/ay's case was on a specific
interpretation of Section 6 generally and more
particularly, Section 6(1 )(c), which is parimateria to
Section 19(1)(c) of the Act. Once it was held that there was
0
no necessity of sanction at all, there would be no
question of there being any doubt arising about the
sanctioning authority. The doubt expressed in Section
19(2) is not a pointer to suggest that a public servant may
E have abused any particular office, but when he occupies
any other office subsequently, then the sanction is a
must. That will be the incorrect reading of the Section.
The Section simply contemplates a situation where there
is a genuine doubt as to whether sanctioning authority
should be the Central Government or the State
F Government or any authority competent to remove him.
The words in Section 19(2) are to be read in conjunction
with Sections 19(1 )(a), 19(1 )(b) and 19(1 )(c). These
clauses only fix the sanctioning authority to be the
authority which is capable of "removing a public servant".
G The doubt could arise in more manners than one and in
more situations than one, but to base the interpretation
of Section 19(1) of the Act on the basis of Section 19(2)
would be putting the cart before the horse. The two
Sections would have to be interpreted in a rational
H manner. Once the interpretation is that the prosecution
ABHAY SINGH CHAUTALA v. C.B.I. 955
of a public servant holding a different capacity than the A
one which he is alleged to have abused, there is no
question of going to Section 6(2) I 19(2) at all in .which
case there will be no question of any doubt. This
interpretation of Section 6(1) or, as the case may be,
Section 19(1), is on the basis of the expression "office" B
in three sub-clauses of Section 6(1 ), or the case may be,
Section 19(1). For all these reasons, it cannot be said that
Antu/ay's case was decided per incuriam of Section 6(2).
[Paras 25, 26 and 27] [983-E-H; 984-A-H; 985-A·C; 986-F·
H; 987-A-B] C
1.5. The appellants, in support of their argument that
Antulay's case requires reconsideration, urged that that
interpretation therein amounted to re-writing of Section
19(1) and as if a proviso would be added to Section 19(1)
to the following effect:- "Provided that nothing in this D
sub-Section shall apply to a case where at the time of
cognizance, the public servant is holding a different post
with a different removing authority from the one in which
the offence is alleged to have been committed." The
argument regarding the addition of the proviso must also E
fall as the language of the suggested proviso
contemplates a different "post" and not the "office",
which are entirely different concepts. That is apart from
the fact that the interpretation regarding the abuse of a
particular office and there being a direct relationship F
between a public servant and the office that he has
abused, has already been approved of in Antulay's case
and the other cases following Antu/ay's case including
Prakash Singh Badal. It was also urged that a literal
interpretation is a must, particularly, to sub-Section (1) of G
Section 19. That argument also must fall as sub-Section
(1) of Section 19 has to be read with in tune with and in
light of sub-Sections (a), (b) and (c) thereof. Therefore, the
theory of litera regis is rejected while interpreting Section
19(1). On the same lines, the argument based on the word H
956 SUPREME COURT REPORTS (2011] 10 S.C.R.
A "is" in sub-Sections (a), (b) and (c) is also rejected. It is
true that the Section operates in praesenti; however, the
Section contemplates a person who continues to be a
public servant on the date of taking cognizance.
However, as per the interpretation, it excludes a person
B who has abused some other office than the one which
he is holding on the date of taking cognizance, by
necessary implication. Once that is clear, the necessity
of the literal interpretation would not be there in the
present case. Therefore, giving the literal interpretation to
c the Section would lead to absurdity and some unwanted
results, as had already been pointed out in Antulay's case.
[Paras 28, 29] [987-C-F; 988-H]
1.6. Based on the language of Sections 19(1) and (2),
the appellant contended that two different terms were
D used in the whole Section, one term being "public
servant" and the other being "a person". It was, therefore,
urged that since the two different terms were used hy the
Legislature, they could not connote the same meaning
and they had to be read differently. The argument was that
E the term "public servant" in relation to the commission
of an offence connotes the time period of the past
whereas the term "a person" in relation to the sanction
connotes the time period of the present and therefore,
since the two terms are not synonymous and convey
F different meanings in respect of time/status of the office,
the term "public servant" should mean the "past office"
while "person" should mean the "present status/present
office". While the different terms used in one provision
would have to be given different meaning, it cannot be
G said that by accepting the interpretation of Section 19(1)
in Antulay's case, the two terms referred to above get the
same meaning. The term "public servant" is used in
Section 19(1) as Sections 7, 10, 1 and 13 which are
essentially the offences to be committed by public
H servants only. Section 15 is the attempt by a public
ABHAY SINGH CHAUTALA v. C.8.1. 957
servant to commit offence referred to in Section 13(1)(c) A
or 13(1)(d). Section 19(1) speaks about the cognizance of
an offence committed by a public servant. It is not a
cognizance of the public servant. The Court takes
cognizance of the offence, and not the accused, meaning,
the Court decides to consider the fact of somebody B
having committed that offence. In case of this Act, such
accused is only a public servant. Then comes the next
stage that such cognizance cannot be taken unless there
is a previous sanction given. The sanction is in respect
of the accused who essentially is a public servant. The c
use of the term "a person" in sub-Sections (a), (b) and
(c) only denotes an "accused". An "accused" means who
is employed either with the State Government or with the
Central Government or in case of any other person, who
is a public servant but not employed with either the State 0
Government or the Central Government. It is only "a
person" who is employed or it is only "a person" who is
prosecuted. His capacity as a "public servant" may be
different but he is essentially "a person" - an accused
person, because the Section operates essentially qua an
accused person. It is not a "public servant" who is E
employed; it is essentially "a person" and after being
employed, he becomes a "public servant" because of his
position. It is, therefore, that the term "a person" is used
in clauses (a), (b) and (c). The key words in these three
clauses are "not removable from his office save by or with F
the sanction of .... 11• It will be again seen that the offences
under Sections 7, 10, 11 and 13 are essentially committed
by those persons who are "public servants". Again, when
it comes to the removal, it is not a removal of his role as
a "public servant", it is removal of "a person" himself G
who is acting as a "public servant". Once the Section is
read in this manner, then there is no question of
assigning the same meaning to two different terms in the
Section. [Para 30] [989-A-H; 990-A-D]
H
958 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 1.7. Again on the basis of the definition of "public
servant" as given in Section 2(c) of the Act, and more
particularly clause 2(c)(vi), which provides that an
arbitrator, on account of his position as such, is public
servant, it was contended by the appellants that some
B persons, as contemplated in Sections 2(c)(vii), (viii), (ix)
and (x), may adorn the character of a public servant only
for a limited time and if after renouncing that character
of a public servant on account of lapse of time or non-
continuation .of their office they are to be tried for the
C abuse on their part of the offices that they held, then it
would be a very hazardous situation. The contention
cannot be accepted. If the person concerned at the time
when he is to be tried is not a public servant, then there
will be no necessity of a sanction at all. Section 19(~) is
D very clear on that issue. This Court does not see how it
will cause any hazardous situation. Similarly, it was tried
to be argued that a Vice-Chancellor who is a public
servant and is given a temporary assignment of checking
the papers or conducting examination or being invigilator
E by virtue of which he is a public servant in an entirely
different capacity as from that of a Professor or a Vice-
Chan cellor, commits an offence in the temporary
capacity, then he would not be entitled to the protection
and that will be causing violence to such public servant
and, therefore, such could not have been the intention of
F the Legislature. The example is wholly irrelevant in the
light of the clearest possible dictum in Antulay's case and
in Prakash Singh Badal's case. If the concerned person
continues to be a Vice-Chancellor and if he has abused
his office as Vice-Chancellor, there would be no doubt
G that his prosecution would require a sanction. So, it will
be a question of examining as to whether such person
has abused his position as a Vice-Chancellor and whether
he continues to be a Vice-Chancellor on the date of taking •
of the cognizance. If, however, he has not abused his·
H position as Vice-Chancellor but has committed some
ABHAY SINGH CHAUTALA v. C.B.I. 959
other offence which could be covered by the sub- A
Sections of Section 19, then there would be no necessity
of any sanction. [Para 31] [990-E-H; 991-A-D]
1.8. The concept of 'doubt' or 'plurality of office'
cannot be used to arrive at a conclusion that on that 8
basis, the interpretation of Section 19(1) would be
different from that given in Antulay's case or Prakash Singh
Badal. Merely because a concept of doubt is
contemplated in Section 19(2), it cannot mean that the
public servant who has abused some other office than C
the one he is holding could not be tried without a
sanction. The appellants tried to support their argument
on the basis of the theory of "legal fiction". This Court
does not see as to how the theory of "legal fiction" can ·
work in this case. It may be that the appellants in this case
0
held more than one office during the check period which
they are alleged to have abused; however, there will be
no question of any doubt if on the date when the
cognizance is taken, they are not continuing to hold that
very office. The relevant time is the date on which the
cognizance is taken. If on that date, the appellant is not E
a public servant, there will be no question of any sanction.
If he continues to be a public servant but in a different
capacity or holding a different office than the one which
is alleged to have been abused, still there will be ·no
question of sanction and in that case, there will also be F
no question of any doubt arising because the doubt can
arise only when the sanction is necessary. In case of the
present appellants, there was no question of there being
any doubt because basically there was no question of
the appellants' getting any protection by a sanction. [Para G
32] [991-F-H; 992-A-D]
1.9. It cannot be said that the decision in Antu/ay's
case and the subsequent decisions require any
reconsideration. Even on merits, there is no necessity of H
960 SUPREME COURT REPORTS [2011] 10 S.C.R.
A reconsidering the relevant ratio laid down in Antulay's
case. The High Court was absolutely right in relying on
the decision in Prakash Singh Badal to hold that the
appellants in both the appeals had abused entirely
different office or offices than the one which they were
B holding on the date on which cognizance was taken and,
therefore, there was no necessity of sanction under
Section 19 of the Act as held in K. Karunakaran v. State of
Kera/a and the later decision in Prakash Singh Badal. [Paras
33, 34] [992-E-G]
c Prakash Singh Badal v. State of Punjab 2007 (1) SCC
1: 2006 (10) Suppl. SCR 197; K. Karunakaran v. State of
Kera/a 2007 (1) SCC 59: 2006 (10) Suppl. SCR 283; S.A.
Venkataraman v. State AIR 1958 SC 107: 1958 SCR 1040;
Balakrishnan Ravi Menon v. Union of India 2007 (1) SCC 45
D and Shanker Raju Vs. Union of India 2011 (2) SCC 132:
2011 (2) SCR 1-relied on. ·
R. S. Nayak v. A R. Antu/ay 1984 (:~) SCC 183: 1984
(2) SCR 495 - explained and relied on.
E
Air Commodore Kai/ash Chand v. The State (S.P.E.
Hyderabad) (1973) 2 AWR 263; P. V. Narsimha Rao Vs. State
1998 (4) SCC 626: 1998 (2) SCR 870; Waman Rao Vs.
Union of India 1981 (2) SCC 362: 1981 (2) SCR 1;
F Manganese Ore (India) Ltd. Vs. CST1976 (4) SCC 124: 1976
(3) SCR 99; Ganga Sugar Corpn. Vs. State of UP. 1980 (1)
SCC 223: 1980 (1) SCR 769; Union of India Vs. Raguhbir
Singh 1989 (2) SCC 754: 1989 (3) SCR 316; Krishena
Kumar Vs. Union of India 1990 (4) SCC 207: 1990 (3) SCR
352; Union of India Vs. Paras Laminates (P) Ltd. 1990(4) SCC
G 453: 1990 (3) SCR 789; Hari Singh Vs. State of Haryana
1993 (3) SCC 114: 1993 (3) SCR 61; Punjab Land
Development Reclamation Corporation Ltd. v. Presiding
Officer 1990 (3) SCC 682: 1990 (3) SCR 111 and Nirmal
Jeet Kaur Vs. State of M.P. 2004 (7) SCC 558: 2004 (3)
H Suppl. SCR 1006 - referred to.
ABHAY SINGH CHAUTALA v. C.B.L 961
Robert Wigram Crawford Vs. Richard Spooner 4 MIA A
179; Re Bedia Vs. Genreal Accident, Fir and Life Assurance
Corporation Ltd. 1948 (2) All ER 995; Bourne (Inspector of
Taxes) Vs. Norwich Crematorium Ltd. 1967 (2) All ER 576;
Tiverton Estates Ltd. Vs. Wearwell Ltd. 1974 (1) WLR 176 -
referred to. B
Habibullah Khan v. State of Orissa & Anr. 1995 (2) SCC
437: 1995 (1) SCR 819; Abdul Wahab Ansari Vs. State of
Bihar 2000 (8) SCC 500: 2000 (3) Suppl. SCR 747; Baij
Nath Prasad Tripathi Vs. State of Bhopal 1957 (1) SCR 650; C
Director of Settlement, State of A.P. v. M.R. Apparao 2002
(4) SCC 638: 2002 (2) SCR 661; State of Haryana Vs. Ranbir
@ Rana 2006 (5) SCC 167: 2006 (3) SCR 864; Division
Controller, KSRTC v. Mahadeva Sheffy & Anr. 2003(7) SCC
197: 2003 (2) Suppl. SCR 14; H.H. Maharajadhiraja Mahdav
Rao Jiwaji Rao Scindia Bahadur Vs. Union of India AIR 1971 D
SC 530: 1971 (3) SCR 9; State of brissa Vs. Sudhansu
Sekhar Misra AIR 19.68 SC 647: 1968 SCR 154; ADM
Jabalpur etc. Vs. Shivkant Shukla 1976 (2) SCC 521: 1976
(0) Suppl. SCR 172; K. Veeraswami Vs. Union of India 1991
(3) SCC 655: 1991 (3) SCR 189 and Marta Silva & Ors. Vs. E
~ Piedade Cardazo & Ors. AIR 1969 Goa 94 - cited.
Quinn Vs. Leathern 1901 AC 495 - cited.
Case Law Reference:
F
2006 (10) Suppl. SCR 197 relied on Paras 8,11,13,
21,24,29,
30,31,32,33
and 34
1984 (2) SCR 495 explained and relied on Paras 8,9, G
11, 13,16,
20-34
2001 (1 > sec 45 relied on · Paras 9,11
2006 (10) Suppl. SCR 283 relied on Paras 9, 11 H
962 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 1995 (1) SCR 819 cited Paras 9, 11
2000 (3) Suppl. SCR 747 cited Para 10
1957 (1) SCR 650 cited Para 10
2002 (2) SCR 661 cited Paras 13,23,
B
2006 (3) SCR 864 cited Paras 13,23
2003 (2 ) Suppl. SCR 14 cited Paras 13, 23
1971 (3) SCR 9 cited Paras 13, 23
c
1968 SCR 154 cited Paras 13, 23
1901 AC 495 cited Para 13
1976 (0) Suppl. SCR 172 cited Paras 13, 23
D 1991 (3} SCR 189 cited Para 13
1958 SCR 1040 relied on Paras 13, 15,
32
(1973) 2 AWR 263 referred to Para 15
E
1998 (2) SCR 870 referred to Paras 17,20,
AIR 1969 Goa 94 cited Para 23
2011 (2) SCR 1 relied on Para 24
F 1974 (1) WLR 176 referred to Para 24
1981 (2) SCR 1 referred to Para 24
1976 (3) SCR 99 referred to Para 24
G 1980 (1) SCR 769 referred to Para 24
1989 (3) SCR 316 referred to Para 24
1990 (3) SCR 352 . referred to Para 24
1990 (3) SCR 789 referred to Para 24
H
ABHAY SINGH CHAUTALA v. C.8.1. 963
1993 (3) SCR 61 referred to Para 24
A
1990 (3) SCR 111 cited Para 25
2004 (3) Suppl. SCR 1006 referred to Para 25
4 MIA 179 referred to Para 29 B
1948 (2) All ER 995 referred to Para 29
1967 (2) All ER 576 referred to Para 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal c
No. 1257 of 2011.
From the Judgment & Order dated 8.7.2010 of the High
Court of Delhi at New Delhi in Criminal Misc. No. 915 of 2010.
WITH D
Crl. A.No. 1258 of 2011
Mukul Rohtagi, U.U. Lalit, Daya Krishan Shrama, S.K.
Gupta, Amit Sahni, Anil Rathi, Monika Sharma, Ninand Laud,
Ranjeeta Rohtagi for the Appellant. E
Gopal Subramanium, SG, Dayan Krishnan, Gautam
Narayan, N.A. Menon (for Arvind Kumar Sharma) for "the
Respondent.
The Judgment of the Court was delivered by
F
V.S. SIRPURKAR, J. 1. This judgment will dispose of two
Special Leave Petitions, they being SLP (Crl.) No. 7384 of
2010 and SLP (Crl.) No. 7428 of 2010. While Abhay Singh
Chautala is the petitioner in the first Special Leave Petition, the G
second one has been filed by Shri Ajay Singh Chautala. The
question involved is identical in both the SLPs and hence they
are being disposed of by a common judgment.
2. Leave granted in both the Special Leave Petitions.
H
964 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 3. Whether the sanction under Section 19 of The
Prevention of Corruption Act (hereinafter called "the Act" for
short) was necessary against both the appellants and, therefore,
whether the trial which is in progress against both of them, a
valid trial, is common question. This question was raised
B before the Special Judge, CBI before whom the appellants are
being tried for the offences under Sections 13(1) (e) and 13(2)
of the Prevention of Corruption Act read with Section 109 of
Indian Penal Code in separate trials.
4. Separate charge sheets were filed against both the
C appellants for the aforementioned offences by the CBI. It was
alleged that both the accused while working as the Members
of Legislative Assembly had accumulated wealth
disproportionate to their known sources of income. The
charges were filed on the basis of the investigations conducted
D by the CBI. This was necessitated on account of this Court's
order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to
investigate the JBT Teachers Recruitment Scam. The offences
were registered on 24.5.2004. The CBI conducted searches
and seized incriminating documents which revealed that Shri
E Om Prakash Chautala and his family had acquired movable
and immovable properties valued at Rs.1,467 crores. On this
basis a Notification came to be issued on 22.2.2006 under
Sections 5 and 6 of the DSPE Act with the consent of the
Government of Haryana extending powers and jurisdiction
F under the DSPE Act to the State of Haryana for investigation
of allegations regarding accumulation of disproportionate
assets by Shri Om Prakash Chautala and his family members
under the Prevention of Corruption Act. A regular First
Information Report then came to be registered against Shri Om
G Prakash Chautala who is the father of both the appellants. It is
found that in the check period of 7.6.2000 to 8.3.2005, appellant
Abhay Singh Chautala had amassed wealth worth
Rs.1, 19,69,82,619/- which was 522. 79 % of appellant Abhay
Singh Chautala's known sources of income. During the check
H period, Shri Abhay Singh Chautala was the Member of the
ABHAY SINGH CHAUTALA v. C.B.I. 965
[V.S. SIRPURKAR, J.]
Legislative Assembly Haryana, Rori Constituency. Similarly, in A
case of Ajay Singh Chautala, his check period was taken as
24.5.1993 to 31.5.2006 during which he held the following
offices:-
1. 2.3.90 to 15.12.92 MLA Vidhan Sabha,
Rajasthan B
2. 28.12.93 to 31.11.98 MLA Vidhan Sabha,
Rajasthan
3. 10.10.99 to 6.2.2004 Member of Parliament, Lok
Sabha from Bhiwani
Constituency c
4. 2.8.2004 to 03.11.09 Member of Parliament,
Rajya Sabha
He was later on elected as MLA from Dabwali
constituency, Haryana in November, 2009. It was found that he
had accumulated wealth worth Rs.27,74,74,260/- which was D
339.26 % of his known sources of income. It was on this basis
that the charge sheet came to be filed.
5. Admittedly, there is no sanction to prosecute under
Section 19 of the Act against both the appellants. E
6. An objection regarding the absence of sanction was
raised before the Special Judge, who in the common order
dated 2.2.2010, held that the allegations in the charge sheet
did not contain the allegation that the appellants had abused F
their current office as member of Legislative Assembly and,
therefore, no sanction was necessary .
...
7. This order was challenged by way of a petition under
Section 482 Cr.P.C. before the High Court. The High Court
dismissed the said petition by the order dated 8.7.2010. G
8. The learned Senior Counsel Shri Mukul Rohtagi as well
as Shri U.U. Lalit arguing for the appellants, urged that on the
day when the charges were framed or on any date when the
cognizance was taken, both the appellants were admittedly H
966 SUPREME COURT REPORTS [2011) 10 S.C.R.
A public servants and, therefore, under the plain language of
Section 19 (1) of the Act, the Court could not have taken
cognizance unless there was a sanction. The learned senior
counsel analyzed the whole Section closely and urged that in
the absence of a sanction, the cognizance of the offences under
B the Prevention of Corruption Act could not have been taken. In
this behalf, learned senior counsel further urged that the
judgment of this Court in Prakash Singh Badal v. State of
Punjab [2007 (1) SCC 1) as also the relied on judgment in RS
Nayak v. A R. Antulay [1984 (2) sec 183) were not correct
c and required reconsideration and urged for a reference to a
Larger Bench.
9. Against these two judgments as also the judgments in
Balakrishnan Ravi Menon v. Union of India [2007 (1) SCC
45), K. Karunakaran v. State of Kera/a [2007 (1) SCC 59) and
D Habibullah Khan v. State of Orissa & Anr. [1995 (2) SCC 437),
this Court had dearly laid down the law and had held that where
the public servant had abused the office which he held in the
check period but had ceased to hold "that office" or was
holding a different office then a sanction would not be
E necessary. The learned Solicitor General appearing for the
respondent urged that the law on the question of sanction was
clear and the whole controversy was set at rest in AR Antulay's
case (cited supra) which was followed throughout till date. The
Solicitor General urged that the said position in law should not
F be disturbed in view of the principle of staire decicis. Extensive
arguments were presented by both the parties requiring us now
to consider the question.
"'
Section 19 runs as under:-
G "19. Previous sanction necessary for prosecution.
(1) No court shall take cognizance of an offence
punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public
H servant, except with the previous sanction, -
ABHAY SINGH CHAUTALA v. C.B.I. 967
[V.S. SIRPURKAR, J.]
(a) In the case of a person who is employed in A
connection with the affairs of the Union and
is not removable from his office save by or
with the sanction of the Central Government,
of that Government;
B
(b) In the case of a person who is employed in
connection with the affairs of a Sta.te and is
not removable from his office save by or with
the sanction of the State Government, of that
Government;
c
(c) In the case of any other person, of the
authority competent to remove him from his
office.
(2) Where for any reason whatsoever any doubt arises D
as to whether the previous sanction as required
under sub-section (1) should be given by the
Central Government or the State Government or
any other authority, such sanction shall be given by
that Government or authority which would have been
E
competent to remove the public servant from his
office at the time when the offence was alleged to
have been committed.
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973- F
(a) No finding, sentence or order passed by a Special
Judge shall be reversed or altered by a Court in
appeal, confirmation or revision on the ground of
the absence of, or any error, omission, irregularity G
in, the sanction required under sub-section (1 ),
unless in the opinion of that court, a failure of justice
has, in fact, been occasioned thereby;
(b) No court shall stay the proceedings under this Act
H
968 SUPREME COURT REPORTS [2011] 10 S.C.R.
A on.the ground of any error, omission or irregularity
in the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has
resulted in a failure of justice;
(c) No court shall stay the proceedings under this Act
B
on any other ground and no court shall exercise the
powers of revision in relation to any interlocutory
order passed in inquiry, trial, appeal or other
proceedings.
c (4) In determining under sub-section (3) whether
the absence of, or any error, omission or
irregularity in, such sanction has occasioned
or resulted in a failure of justice the Court
shall have regard to the fact whether the
D objection could and should have been raised
at any earlier stage in the proceedings.
Explanation: For the purposes of this Section, -
(a) Error includes competency of the authority to
E grant sanction;
(b) A sanction required for prosecution includes
reference to any _requirement that the
prosecution shall be at the instance of a
F specified authority or with the sanction of a
specified person or any requirement of a
similar nature."
10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior
counsel appearing on behalf of the appellants, firstly pointed
G out that the plain meaning of Section 19(1) of the Act is that
when any public servant is tried for the offences under the Act,
a sanction is a must. The learned senior counsel were at pains
to point out that in the absence of a sanction, no cognizance
can be taken against the public servant under Sections 7, 10,
H
ABHAY SINGH CHAUTALA v. C.B.I. 969
[V.S. SIRPURKAR, J.]
11, 13 and 15 of the Act and thus, a sanction is a must. The A
learned senior counsel relied on the decision in Abdul Wahab
Ansari Vs. State of Bihar (2000 (8) SCC 500], more
particularly, paragraph 7, as also the decision in Baij Nath
Prasad Tripathi Vs. State of Bhopal [1957 (1) SCR 650]. The
plain language of Section 19(1) cannot be disputed. The B
learned senior counsel argued that Section 19(1) of the Act
creates a complete embargo against taking cognizance of the
offences mentioned in that Section against the accused who
is a public servant. The learned senior counsel also argued that
it is only when the question arises as to which authority should c
grant a sanction that the sub-Section (2) will have to be taken·
recourse to. However, where there is no duty of any such nature,
the Court will be duty bound to ask for the sanction before it
takes cognizance of the offences mentioned under this Section.
11. As against this, Shri Gopal Subramanium, learned D
Solicitor General, pointed out the decision in RS Nayak v. A
R. Antulay (cited supra) and the subsequent decisions in
. Balakrishnan Ravi Menon v. Union of India (cited supra), K.
Karunakaran v. State of Kera/a (cited supra), Habibullah Khan
v. State of Orissa & Anr. (cited supra) and lastly, in Prakash E
Singh Badal v. State ofPunjab (cited supra).
12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior
CO!.msel appearing on behalf of the appellants, have no quarrel
with the proposition that in all the above cases, it is specifically F
held that where the alleged misconduct is in some different
capacity than the one which is held at the time of taking
cognizance, there will be no necessity to take the sanction.
13. To get over this obvious difficulty, the learned senior
counsel appearing on behalf of the appellants contended that G
the basic decision in RS Nayak v. AR. Antu/ay (cited supra)
was not correctly decided, inasmuch as the decision did not
consider the plain language of the Section which is clear and
without any ambiguity. The learned senior counsel contended
H
970 SUPREME COURT REPORTS [2011] 10 S.C.R.
A that where the language is clear and admits of no ambiguity,
the Court cannot reject the plain meaning emanating out of the
provision. Further, the learned senior counsel pointed out that
even in the judgments following the judgment in RS Nayak v.
A R. Antulay (cited supra) upto the judgment in the case of
s Prakash Singh Badal v. State of Punjab (cited supra) and even
thereafter, the learned Judges have not considered the plain
meaning and on that count, those judgments also do not
present correct law and require reconsideration. Another
substantial challenge to the judgment in RS Nayak v. A R.
c Antulay (cited supra) is on account of the fact that the law
declared to the above effect in RS Nayak v. A R. Antulay (cited
supra) was obiter dictum, inasmuch as it was not necessary
for the Court to decide the question, more particularly, decided
by the Courts in paragraphs 23 to 26. The learned senior
counsel pointed out that, firstly, the Court in RS Nayak v. A R.
0
Antulay (cited supra), came to the conclusion that Shri Antulay
who was a Member of the Legislative Assembly, was not a
public servant. It is contended that once that finding was arrived
at, there was no question of further deciding as to whether, the
E accused being a public servant in a different capacity, the law
required that there had to be a sanction before the Court could
take the cognizance. Learned senior counsel further argued that
where the Court makes an observation which is either not
necessary for the decision of the court or does not relate to the
material facts in issue, such observation must be held as obiter
F dictum. In support of this proposition, the learned senior counsel
relied on the decision in Director of Settlement, State of A.P.
Vs. M.R. Apparao [2002 (4) SCC 638] (Paragraph 7), State
of Haryana Vs. Ranbir@ Rana [2006 (5) SCC 167], Division
Controller, KSRTC Vs. Mahadeva Shetty & Anr. [2003(7)
G SCC 197] (Paragraph 23), H.H. Maharajadhiraja Mahdav Rao
Jiwaji Rao Scindia Bahadur Vs. Union of India [AIR 1971 SC
530] (Paragraph 325 onwards), State of Orissa Vs. Sudhansu
Sekhar Misra [AIR 1968 SC 647] [in which the celebrated
decision in Quinn Vs. Leathern 1901 AC 495] was relied on .
H and ADM Jaba/pur etc. Vs. Shivkant Shukla [1976 (2) SCC
ABHAY SINGH CHAUTALA v. C.B.I. 971
[V.S. SIRPURKAR, J.]
521] etc. The learned senior counsel also argued that the whole A
class of public servant would be deprived of the protection if
the decision in RS Nayak v. A R. Antulay (cited supra) is
followed. For this purpose, learned senior counsel argued that
in such case, public servants would be exposed to frivolous
prosecutions which would have disastrous effects on their 8
service careers, though they are required to be insulated
against such false, frivolous and motivated complaints of wrong
doing. It is then argued that the decision in K. Veeraswami Vs.
Union of India [1991 (3) sec 655] has in fact removed the very
foundation of the decision in RS Nayak v. A. R. Antu/ay (cited C
supra) in respect of the sanction. It is also argued that, in effect,
the decision in RS Nayak v. A R. Antulay (cited supra) has
added further proviso to the effect "provided that nothing in this
sub-Section shall apply to a case where at the time of
cognizance, the public servant is holding a different post with
a different removing authority from the one in which the offence 0
is alleged to have been committed". It is argued that such an
addition would be clearly impermissible as it would negate the
very foundation of criminal law which requires a strict
interpretation in favour of the accused and not an interpretation
which results into deprivation of the accused of his statutory E
rights. The decision in S.A. Venkataraman Vs. State [AIR 1958
SC 107] is also very heavily relied upon, more particularly, the .
observations in paragraphs 14 and 16 thereof.
14. It will be, therefore, our task to see as to whether the F
judgment in A. R. Antulay's case (cited supra) and the law
decided therein, particularly in paragraphs 24, 25 and 26 is
obiter. Paragraphs 24, 25 and 26 are as under:
"24. Now if the public servant holds two offices and he is
accused of having abused one and from which he is C:
removed but continues to hold the other which is neither
alleged to have been used nor abused, is a sanction of
the authority competent to remove him from the office which
is neither alleged or shown to have been abused or
H
972 SUPREME COURT REPORTS [2011) 10 S.C.R.
A misused necessary? The submission is that if the
harassment of the public servant by a frivolous prosecution
and criminal waste of his time in law courts keeping him
away from discharging public duty, are the objects
underlying Section 6, the same would be defeated if it is
B held that the sanction of the latter authority is not necessary.
The submission does not commend to use. We fail to see
how the competent authority entitled to remove the public
servant from an office which is neither alleged to have
been used or abused would be able to decide whether the
rprosecution is frivolous or tendentious. An illustration was
c posed to the learned Counsel that a Minister who is
indisputably a public servant greased his palms by
abusing his office as Minister, and then ceased to hold the
office before the court was called upon to take cognizance
of the offence against him and therefore, sanction as
D contemplated by Section 6 would not be necessary; but if
after committing the offence and before the date of taking
of cognizance of the offence, he was elected as a
Municipal President in which capacity he was a public
servant under the relevant Municipal law, and was holding
E that office on the date on which court proceeded to take
cognizance of the offence committed by him as a Minister,
would a sanction be necessary and that too of that authority
competent to remove him from the office of the Municipal
President. The answer was- in affirmative. But the very
F illustration would show that such cannot be the law. Such
an interpretation of Section 6 would render it as a shield
to an unscrupulous public servant. Someone interested in
protecting may shift him from one office of public servant
to another and thereby defeat the process of law. Ode can
G legitimately envisage a situation wherein a person may
hold a dozen different offices, each one clothing him with
the status of a public servant under Section 21 IPC and
even if he has abused only one office for which either there
is a valid sanction to prosecute him or he has ceased to
H hold that office by the time court was called upon to take
ABHAY SINGH CHAUTALA v. C.B.I. 973
[V.S. SIRPURKAR, J.]
cognizance, yet on this assumption, sanction of 11 different A
competent authorities each of which was entitled to remove
him from 11 different public offices would be necessary
before the court can take cognizance of the offence
committed by such public servant/while abusing one office
which he may have ceased to hold. Such an interpretation B
in contrary to all canons of construction and leads to an
absurd and product which of necessity must be avoided.
Legislation must at all costs be interpreted in such a way
that it would not operate as a rougue's charter. (See Davis
& Sons Ltd. v. Atkins [1977] ICR 662 c
25. Support was sought to be drawn for the submission
from the decision of the Andhra Pradesh High Court in Air
Commodore Kai/ash Chand v. The State (S.P.E.
Hyderabad) (1973) 2 AWR 263 and the affirmance of that
decision by this Court in The State (S.P.E. Hyderabad) D
v. Air Commodore Kai/ash Chand : 1980CriLJ393 . In
that case accused l<ailash Chand was, a member of the
Indian Air Force having entered the service on 17th
November 1941. He retired from the service on 15th June
, 1965, but was re-employed for a period of 2 years with E
effect from 16th June, 1965. On 7th September, 1966, the
respondent was transferred to the Regular Air Force
Reserve with effect from June 16, 1965 to June 15, 1970
i.e. for a period of 5 years. On 13th March, 1968, the re-
employment given to the respondent ceased and his F
service was terminated with effect from April 1, 1968. A ·
charge-sheet was submitted against him for having
committed an offence under Section 5(2) of the Prevention
of Corruption Act, 1947 during the period March 29, 1965
to March 16, 1967. A contention was raised on behalf of G
the accused that the court could not take cognizance of the
offei:ice in the absence of a valid sanction of the authority
competent to remove him from the office held by him as a
public servant. The learned special Judge negatived the
contention. In the revision petition filed by the accused in H
974 SUPREME COURT REPORTS [2011) 10 S.C.R.
A the High Court, the learned Single Judge held that on the
date of taking cognizance of the offence, the accused was
a member of the Regular Air Force Reserve set up under
the Reserve and Auxiliary Air Force, 1952 and the rules
made there under. Accordingly, it was held that a sanction
B to prosecute him was necessary and in the absence of
which the court could not the cognizance of the offences
and the prosecution was quashed. In the appeal by
certificate, this Court upheld the decision of the High Court.
This Court held following the decision in S.A.
c Venkataraman's case that if the public servant had ceased
to be a public servant at the time of taking cognizance of
the offence, Section 6 is not attracted. Thereafter the court
proceeded to examine whether the accused was a public
servant on the date when the court took cognizance of the
offence and concluded that once the accused was
D
transferred to the Auxiliary Air Force, he retained his
character as a public ~ervant because he was required to
undergo training and to be called up for service as and
when required. The court further held that as such the
accused was a public servant as an active member of the
E Indian Air Force and a sanction to prosecute him under
Section 6 was necessary. This decision is of no assistance
for the obvious reason that nowhere it was contended
before the court, which office was alleged to have been
abused by the accused and whether the two offices were
F separate and distinct. It is not made clear whether the
accused continued to hold the office which was alleged to
have been abused or misused even at the time of taking
cognizance of the offence. But that could not be so
because the service of the accused was terminated on
G April 1, 1968 while the cognizance was sought to be taken
in June, 1969. Indisputably, the accused had ceased to
hold that office as public servant which he was alleged to
have misused or abused. The court was however, not
invited to consider the contention canvassed before us:
H Nor was the court informed specifically whether the
ABHAY SINGH CHAUTALA v. C.B.I. 975
[V.S. SIRPURKAR, J.]
subsequent office held by the accused in that case was A
the same from which his service was terminated meaning
thereby he was re-employed to the same office. The
decision appears to proceed on the facts of the case. We
would however, like to make it abundantly clear that if the
two decisions purport to lay down that even if a public B
servant has ceased to hold that office as public servant
which he is alleged to have abused or misused for corrupt
motives, but on the date of taking cognizance of an offence
alleged to have been committed by him as a public servant
which he ceased to be and holds an entirely different public c
office which he is neither alleged to have'misused or
abused for corrupt motives, yet the sanction of authority
competent to remove him from such latter office would be
necessary before taking cognizance of the offence alleged
to have been committed by the public servant while
0
holding an office which he is alleged to have abused or
misused and which he has ceased to hold, the decisions
in our opinion, do not lay down the correct law and cannot
be accepted as making a correct interpretation of Section
6.
E
26. Therefore, upon a true construction of Section 6, it is
implicit therein that Sanction of that competent authority
alone would be necessary which is competent to remove
the public servant from the office which he is alleged to
have misused or abused for corrupt motive and for which F
a prosecution is intended to be launched against him."
15. It is clear from these paragraphs that the law laid down
in Air Commodore Kai/ash Chand v. The State (S.P.E.
Hyderabad) [(1973) 2 AWR 263) was taken into consideration. G
The Court has also quoted S.A. Venkataraman's case (cited
supra) and the decision in Kai/ash Chand's case (cited supra)
was distinguished by holding thus:
"This decision is of no assistance for the obvious reason
that nowhere it was contended before the court, which H
976 SUPREME COURT REPORTS [2011] 10 S.C.R.
A office wa_s alleged to have been abused by the accused
and whether the two offices were separate and distinct. It
is not made clear whether the accused continued to hold
the office which was alleged to have been abused or
misused even at the time of taking cognizance of the
B offence. But that could not be so because the service of
the accused was terminated on April 1, 1968 while the
cognizance was sought to be taken in June, 1969.
Indisputably, the accused had ceased to hold that office
as public servant which he was alleged to have misused
c or abused. The court was however, not invited to consider
the contention canvassed before us: Nor was the court
informed specifically whether the subsequent office held
by the accused in that case was the same from which his
service was terminated meaning thereby he was re-
employed to the same office. The decision appears to
D
proceed on the facts of the case."
16. The propositions argued by the learned Solicitor
General have, therefore, been totall~ Rccepted. However, that
does not solve the question. The question is whether these
E propositions amount to obiter. The learned senior counsel for
the appellants insists that it was not at all necessary for the
Court to make these observations as the Court had answered
the question whether A.R. Antulay in his capacity as an MLA,
was a public servant, in negative. The learned senior counsel
F argued that once it was found that Antulay in his capacity as
an MLA, was not a public servant, it was not at all necessary
for the Court to go further and probe a further question as to
whether a public servant who has abused a particular office
ceased to hold that office and held some other office on the
G date of cognizance would still require sanction for his
prosecution for the offence under the Act. The argument is
extremely attractive on the face of it because indeed in
Antulay's case (cited supra) such a finding that Shri Antulay in
his capacity is an MLA was not a public servant was
H unequivocally given. However, we do not agree to the
ABHAY SINGH CHAUTALA v. C.B.I. 977
[V.S. SIRPURKAR, J.]
recorded its finding in paragraphs 23 to 26 as they did. It is A
necessary firstly to note paragraph 15 which gives a clear cut
idea as to what was the exact controversy therein and how the
rival parties addressed Courts on various questions. Paragraph
15 is as under:-
8
"15. The appellant, the original complainant, contends that
the learned special Judge was in error in holding that
M.L.A. is a public servant within the meaning of the
expression under Section 21 (12)(a). The second
submission was that if the first question is answered in the
affirmative, it would be necessary to examine whether a C
sanction as contemplated by Section 6 is necessary. If the
answer to the second question is in the affirmative it. would
be necessary to identify the sanctioning authority. The
broad sweep of the argument was that the complainant
in his complaint has alleged that the accused abused his D
office of Chief Minister and not his office, if any, as M.L.A.
and therefore, even if on the date of taking cognizance
of the offence the accused was M.L.A, nonetheless no
sanction to prosecute him is necessary as envisaged by
Section 6 of the 1947 Act. It was urged that as the E
allegation against the accused in the complaint is that he
abused or misused his office as Chief Minister and as
by the time the complaint was filed and cognizance was
taken, he had ceased to hold the office of the Chief
Minister no sanction under Section 6 was necessary to F
prosecute him for the offences alleged to have been
committed by him when the accused was admittedly a
public servant in his capacity as Chief Minister."
(Emphasis supplied).
Therefore, it will be clear that the complainant's main G
argument was the abuse of the office of Chief Minister which
the accused ceased to hold and hence no sanction was
necessary. In that the complainant proceeded on the premise
that the accused as the MLA was a public servant.
H
978 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 17. In paragraph 16 the contention of the accused is noted
which suggests that he was a public servant within the
contemplation of clauses (3) and (7) of Section 21 of IPC as
also under section 21 (12) (a). In fact it was the argument of
accused by way of the next claim that if the accused holds
B plurality of offices each of which confers the status of a public
servant and even if it is alleged that he has abused or misused
one office as a public servant notwithstanding the fact that there
was no allegation of the abuse or misuse of other office held
as public servant, the sanction of each authority competent to
c remove him from each of the offices would be a sine qua non
under Section 6 before a valid prosecution can be launched
against the accused. Therefore, the question of accused being
a public servant was inextricably mixed with the question of the
office which accused was alleged to have misused. There was
no dichotomy between the two questions. Strangely enough, the
D accused claimed to be a public servant, unlike the present case
and it was on that premise that the accused had raised a
question that there would have to be the sanction qua each office
that he continued to hold on the date when the cognizance was
taken. In the present case, it is not disputed that the accused
E was a public servant. Undoubtedly they were public servants.
By the subsequent judgment in P. V. Narsimha Rao Vs. State
[1998 (4) sec 626] it has been clearly held now that the
Members of Legislative Assembly and the Members of
Parliament are public servants. Therefore, the question which
F was addressed in that case by the accused claiming himself
to be a public servant is an identical question which fell for
consideration before the High Court as also before us. In
paragraph 17, the Court formulated the questions to be decided
precisely on the basis of the contention raised by the accused
G . in that case. Following were those questions :
"(a) What is the relevant date with reference to which a
valid sanction is a pre-requisite for the prosecution
of a public servant for offences enumerated in
Section 6 of the 1947 Act?
H
ABHAY SINGH CHAUTALA v. C.B.I. 979
[V.S. SIRPURKAR, J.]
(b) If the accused holds plurality. of offices occupying A
each of which makes him a public servant, is
· sanction of each one of the competent authorities
entitled to remove him from each one of the offices
held by him necessary and if anyone of the
competent authorities fails or declines to grant B
sanction, is the Court precluded or prohibited from
taking cognizance of the offence with which the
public servant is charged?
(c) Is it implicit in Section 6 of the 1947 Act that
sanction of that competent authority alone is c
necessary, which is entitled to remove the public
servant from the office which is alleged to have
been abused for misused for corrupt motives?
(d) Is M. L.A. a public servant within the meaning of the D
expression in Section 21(12)(a) IPC?
(e) Is M.L.A. a public servant within the meaning of the
expression, in Section 21 (3) and Section 21 (7)
IPC?
E
(f) Is sanction as contemplated by Section 6 of the
1947 Act necessary for prosecution of M.L.A.?
(g) If the answer to (f) is in the affirmative, which is the
Sanctioning Authority competent to remove M.L.A. F
from the office of Member of the Legislative
Assembly?"
18. It will be seen from the nature of the questions that the
whole controversy was covered by those questions particularly,
G .
the question raised in (b), (c), (d) and (e) were nothing but the
result of the contentions raised by the parties which directly fell
for consideration.
19. The Court answered the first question that the relevant
date of sanction would be the date on which the cognizance H
980 SUPREME COURT REPORTS [2011] 10 S.C.R.
A was taken of the offence. Since in paragraph 23 to 26 the Court
found that the accused in that case did not continue to hold the
office that he had allegedly abused on the date of cognizance,
there was no necessity of granting any sanction. The Court held
so in paragraph 27 in the most unequivocal terms. The Court
B goes on to record "therefore, it is crystal clear that the
complaint filed against the accused charged him with criminal
abuse or misuse of only his office as Chief Minister. By the
time, the court was called upon to take cognizance of the
offences, so alleged in the complaint, the accused had
c ceased to hold the office of the Chief Minister. On this short
ground, it can be held that no sanction to prosecute him was
necessary as former Chief Minister of Maharashtra State. The
appeal can succeed on this short ground." (Emphasis
supplied).
D 20. However, subsequently, the question whether an MLA
was a public servant was also canvassed at length. The Court
then went on to examine the question in further paragraphs and
came to the conclusion that MLA was not a public servant which
law was, of course thereafter, upset in Narsimha Rao's case
E (cited supra). It cannot be said that the question decided by the
Court regarding the abuse of a particular office and the effects
of the accused not continuing with that office or holding an
altogether different office was obiter. In fact it is on that very
basis that the judgment of A.R.Antulay (cited supra) proceeded.
F The question of MLA not being a public servant was decided
as a subsidiary question.
21. This finding of ours is buttressed by the decision
reported in Balakrishnan Ravi Menon v. Union of India (cited
G supra) which decision came almost immediately after Prakash
Singh Badal v. State of Punjab (cited supra) case. Whether
the finding given in the judgment of Antu/ay's case (cited supra)
was obiter was the question that directly fell for consideration
in that case. This Court quoted paragraph 24 of the judgment
in Antulay's case (cited supra) so also some portion of
H
ABHAY SINGH CHAUTALA v. C.8.1. 981
[V.S. SIRPURKAR, J.]
paragraph 25. It is on the basis of these two paragraphs that A
the Court unequivocally rejected the contention that the finding
given in Antulay's case (cited supra) regarding the abuse of
office of Chief Minister was obiter. Therefore, it would not be
possible for us to hold that the finding given in Antualy's case
(cited supra) was an obiter. We must point out at this juncture B
that in Antulay's case (cited supra) the Court first went on to
decide the basic question that if the accused did not continue
with the office that he had allegedly abused on the day
cognizance was taken, then there was no requirement of
sanction. c
22. This finding was given as the complainant in that case
had canvassed in the backdrop of the judgment of the trial Court
discharging the accused holding him to be a public servant. The
trial Court had held that in the absence of such sanction, the
accused was entitled to be discharged. The complainant filed D
a writ petition against this order. This court had permitted to
file a criminal revision against the order of learned Special.
Judge perhaps being of the opinion that the writ petition did
not lie and ultimately this Court transferred the criminal revision
against the trial Court's judgment here. The complainant, E
therefore, had specifically and basically raised the point that
since the accused had ceased to hold the office of Chief
Minister on the date of cognizance, there was no question of
any sanction and that was the main issue which was decided
in Antulay's case (cited supra) as the basic issue by way of F
question No.(b)
23. We, therefore, do not think the finding given in Antulay's
case (cited supra) was in any manner obiter and requires
reconsideration. Learned Senior Counsel relied on the decision G
in Marta Silva & Ors. Vs. Piedade Cardazo & Ors. [AIR 1969
Goa 94], State of A.P. Vs. M.R. Apparao (cited supra], State
of Haryana Vs. Ranbir alias Rana (cited supra], Division
Controller, KSRTC Vs. Mahadeva Shetty & Anr. (cited supra),
H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia
H
982 SUPREME COURT REPORTS (2011] 10 S.C.R.
A Bahadur Vs. Union of India (cited supra), State.. of Orissa Vs.
Sudhansu Sekhar Misra (cited supra) and lastly ADM,
Jabalpur etc. Vs. Shivkant Shukla (cited supra] and contended
that the principles of obiter dicta in the aforementioned
decisions would apply to Antulay's case (cited supra) also. We
B have already shown that the principles regarding the abuse of
a particular office, decided in Antulay's case (cited supra),
could not be termed as Obiter dicta. We have nothing to say
about the principles in the aforementioned decisions. However,
in the circumstances, which we have shown above, all these
c cases would be of no help to the appellants herein, particularly
in the light of our conclusion that the principles arrived at in
Antulay's case (cited supra) could not be termed as obiter
dicta. We, therefore, reject the argument on that count.
24. There is one more reason, though not a major one, for
not disturbing the law settled in Antulay's case (cited supra).
· That decision has stood the test of time for last over 25 years
and it is trite that going as per the maxim stare decisis et non
quieta movere, it would be better to stand by that decision and
not to disturb what is settled. This rule of interpretation was
E approved of by Lord Coke who suggested - "those things which
have been so often adjudged ought to rest in peace". This Court
in Shanker Raju Vs. Union of India [2011 (2) SCC 132],
confirmed this view while relying on the decision in Tiverton
Estates Ltd. Vs. Wearwell Ltd. (1974 (1) WLR 176] and more
F particularly, the observations of Scarman, L.J., while not
agreeing with the view of Lord Denning, M.R. about desirability
of not accepting previous decisions. The observations are to
the following effect:-
"..... I decline to accept his lead only because I think it
G damaging to the law to the long term - though it would
undoubtedly do justice in the present case. To some it will
appear that justice is being denied by a timid, conservative
adherence to judicial precedent. They would be wrong.
Consistency is necessary to certainty - one of the great
H objectives of law."
ABHAY SINGH CHAUTALA v. C.B.I. 983
[V.S. SIRPURKAR, J.]
The Court also referred to the following other cases:- A
Waman Rao Vs. Union of India [1981 (2) SCC 362),
Manganese Ore (India) Ltd. Vs. CST[1976 (4) SCC 124),
Ganga Sugar Corpn. Vs. State of U.P. [1980 (1) SCC
223), Union of India Vs. Raguhbir Singh [1989 (2) SCC B
754), Krishena Kumar Vs. Union of India [1990 (4) SCC
207], Union of India Vs. Paras Laminates (P) Ltd. [1990(4)
SCC 453] and lastly, Harl Singh Vs. State of Haryana
[1993 (3) sec 114).
We respectfully agree with the law laid down in Shanker C
Raju Vs. Union of India (cited supra) and acting on that
decision, desist from disturbing the settled law in Antulay's
case (cited supra). We have in the earlier part of the judgment,
pointed out as to how the decision in Antulay's case (cited
supra) has been followed right up to the decision in Prakash D
Singh Badal v. State of Punjab (cited supra) and even
thereafter.
25. This leaves us with the other contention raised by
learned Senior Counsel Shri Mukul Rohtagi as well as Shri E
U.U. Lalit arguing for the appellants. The learned senior counsel
contended that the decision in Antulay's case (cited supra) is
hit by the doctrine of per incuriam. The learned senior counsel
heavily relied on the decision in Punjab Land Development
Reclamation Corporation Ltd. Vs. Presiding Officer [1990 (3)
SCC 682] and Nirmal Jeet Kaur Vs. State of M. P. [2004 (7)
F
SCC 558] to explain the doctrine of per incuriam. We have
absolutely no quarrel with the principles laid down in those two
cases. However, we feel that the resultant argument on the part
of the learned senior counsel is not correct. In support of their
argument, the learned senior counsel contended that in G
Antulay's case (cited supra), Section 6(2) of the Act, as it
therein existed, was ignored. In short, the argument was that
Section 6(2) which is parimateria with Section 19(2) of the Act
provides that in case of doubt as to which authority should give
the sanction, the time when the offence is alleged to have been H
984 SUPREME COURT REPORTS [2011] 10 S.C.R.
A committed is relevant. The argument further goes on to suggest
that if that is so, then the Act expressly contemplates that a
public servant may be holding office in a different capacity from
the one that he was holding when the offence is alleged to have
been committed at the time when cognizance is taken so as
B to cause doubt about the sanctioning authority. T:ius, there
would be necessity of a sanction on the date of cognizance and,
therefore, in ignoring this aspect, the decision in Antu/ay's case
(cited supra) has suffered an illegality. Same is the argument
in the present case.
c 26. This argument is basically incorrect. In Antulay's case
(cited supra), it is not as if Section 6(2) of the Act as it then
existed, was ignored or was not referred to, but the Constitution
Bench had very specifically made a reference to and had
interpreted Section 6 as a whole. Therefore, it cannot be said
D that the Constitution Bench had totally ignored the provisions
of Section 6 and more particularly, Section 6(2). Once the Court
had held that if the public servant had abused a particular office
and was not holding that office on the date of taking cognizance,
there would be no necessity to obtain sanction. It was obvious
E that it was not necessary for the Court to go up to Section 6(2)
as in that case, there would be no question of doubt about the
sanctioning authority. In our opinion also, Section 6(2) of the
Act, which is parimateria to Section 19(2), does not contemplate
a situation as is tried to be argued by the learned senior
F counsel. We do not agree with the proposition that the Act
expressly contemplates that a public servant may be holding
office in a different capacity from the one that he was holding
when the offence is alleged to have been committed at the time
when cognizance is taken. That is not, in our opinion, the
G eventuality contemplated in Section 6(2) or Section 19(2), as
the case may be. In Antulay's case (cited supra), the Court went
on to hold that where a public servant holds a different capacity
altogether from the one which he is alleged to have abused,
there would be no necessity of sanction at all. This view was
H taken on the specific interpretation of Section 6 generally and
ABHAY SINGH CHAUTALA v. C.8.1. 985
[V.S. SIRPURKAR, J.]
more particularly, Section 6(1 )(c), which is parimateria to A
Section 19(1 ){c) of the Act. Once it was held that there was no
necessity of sanction at all, there would be no question of there
being any doubt arising about the sanctioning authority. The
doubt expressed in Section 19(2), in our opinion, is not a pointer
to suggest thata public servant may have abused any particular B
office, but when he occupies any other office subsequently, then
the sanction is a must. That will be the incorrect reading of the
Section. The Section simply contemplates a situation where
there is a genuine doubt as to whether sanctioning authority
should be the Central Government or the State Government or c
any authority competent to remove him. The words in Section
19(2) are to be read in conjunction with Sections 19(1)(a),
19(1)(b) and 19(1)(c). These clauses only fix the sanctioning
authority to be the authority which is capable of "removing a
public servant". Therefore, in our opinion, the argument based
0
on the language of Section 6(2) or as the case may be, Section
19(2), is not correct. This eventuality has been considered,
though not directly, in paragraph 24 in the judgment in Antu/ay's
case (cited supra), in the following manner:-
"24 ....An illustration was posed to the learned Counsel E
that a Minister who is indisputably a public servant
greased his palms by abusing his office as Minister, and
then ceased to hold the office before the court was called
upon to take cognizance of the offence against him and
therefore, sanction as contemplated by Section 6 would F
not be necessary; but if after committing the offence and
before the date of taking of cognizance of the offence, he
was elected as a Municipal President in which capacity
he was a public servant under the relevant Municipal law,
and was holding that office on the date on which court G
proceeded to take cognizance of the offence committed
by him as a Minister, would a sanction be necessary and
that too of that authority competent to remove him from the
office of the Municipal President. The answer was- in
affirmative. But the very illustration would show that such H
986 SUPREME COURT REPORTS [2011] 10 S.C.R.
A cannot be the law. Such an interpretation of Section 6
would render it as a shield to an unscrupulous public
servant. Someone interested in protecting may shift him
from one office of public servant to another and thereby
defeat the process of law. One can legitimately envisage
B a situation wherein a person may hold a dozen different
offices, each one clothing him with the status of a public
servant under Section 21 IPC and even if he has abused
only one office for which either there is a valid sanction to
prosecute him or he has ceased to hold that office by the
c time court was called upon to take cognizance, yet on this
assumption, sanction of 11 different competent authorities
each of which was entitled to remove him from 11 different
public offices would be necessary before the court can take
cognizance of the offence committed by such public
D , servant/while abusing one office which he may have
ceased to hold. Such an interpretation in contrary to all
canons of construction and /Pads to an absurd and
product which of necessity must be avoided. Legislation
must at all costs be interpreted in such a way that it would
not operate as a rougue's charter".
E
(emphasis supplied)
27. It is in the light of this that the Court did not have to
specify as to under what circumstances would a duty arise for
F locating the authority to give sanction. The doubt could arise in
more manners than one and in more situations than one, but
to base the interpretation of Section 19(1) of the Act on the
basis of Section 19(2) would be putting the cart before the
horse. The two Sections would have to be interpreted in a
G rational manner. Once the interpretation is that the prosecution
of a public servant holding a different capacity than the one
which he is alleged to have abused, there is no question of
going to Section 6(2) I 19(2) at all in which case there will be
no question of any doubt. It will be seen that this interpretation
H of Section 6(1) or, as the case may be, Section 19(1), is on
ABHAY SINGH CHAUTALA v. C.8.1. 987
[V.S. SIRPURKAR, J.]
the basis of the expression "office" in three sub-clauses of A
Section 6(1), or the case may be, Section 19(1). For all these
reasons, therefore, we are not persuaded to accept the
contention that Antulay's case (cited supra) was decided per
incuriam of Section 6(2). In our opinion, the decision in K.
Veeraswami Vs. Union of India (cited supra) or, as the case B
may be, P. V. Narsimha Rao's case (cited supra) are not
apposite nor do they support the contention raised by the
learned senior counsel as regards Antulay's case (cited supra)
being per incuriam of Section 6(2).
28. The learned Senior Counsel Shri Mukul Rohtagi as C
well as Shri U.U. Lalit arguing for the appellants, in support of .
their argument that Antulay's case (cited supra) require
reconsideration, urged that that interpretation deprives the
entire class of public servants covered by the clear words of
Section 6(1)/19(1) of a valuable protection. It was further urged D
that such interpretation would have a disastrous effect on the
careers of the public servants and the object of law to insulate
a public servant from false, frivolous, malicious and motivated
complaints of wrong doing would be defeated. It was also urged
that such interpretation would amount to re-writing of Section E
19(1) and as if a proviso would be added to Section 19(1) to
the following effect:-
"Provided that nothing in this sub-Section shall apply to a
case where at the time of cognizance, the public servant F
is holding a different post with a different removing
authority from the one in which the offence is alleged to
have been committed.
Lastly, it was urged that such an interpretation would
negate the very foundation of criminal law, which requires a strict G
interpretation in favour of the accused. Most of these questions
are already answered, firstly, in Antulay's case (cited supra) and
secondly, in Prakash Singh Badal v. State of Punjab (cited
supra). Therefore, we need not dilate on them. We specifically
reject these arguments on the basis of Antulay's case (cited H
988 SUPREME COURT REPORTS [2011) 10 S.C.R.
A supra) itself which has been relied upon in Prakash Singh Badal
v. State of Punjab (cited supra). The argument regarding the
addition of the proviso must also fall as the language of the
suggested proviso contemplates a different "post" and not the
"office", which are entirely different concepts. That is apart from
B the fact that the interpretation regarding the abuse of a
particular office and there being a direct relationship between
a public servant and the office that he has abused, has already
been approved of in Antulay's case (cited supra) and the other
cases following Antulay's case (cited supra) including Prakash
c Singh Badal v. State of Punjab (cited supra). We, therefore,
reject all these arguments.
29. It was also urged that a literal interpretation is a must,
particularly, to sub-Section (1) of Section 19. That argument
also must fall as sub-Section (1) of Section 19 has to be read
D with in tune with and in light of sub-Sections (a), (b) and (c)
thereof. We, therefore, reject the theory of litera regis while
interpreting Section 19(1 ). On the same lines, we reject the
argument based on the word "is" in sub-Sections (a), (b) and
(c). It is true that the Section operates in praesenti; however,
E the Section contemplates a person who continues to be a public
servant on the date of taking cognizance. However, as per the
interpretation, it excludes a person who has abused some other
office than the one which he is holding on the date of taking
cognizance, by necessary implication. Once that is clear, the
F necessity of the literal interpretation would not be there in the
present case. Therefore, while we agree with the principles laid
down in Robert Wigram Crawford Vs. Richard Spooner [4 MIA
179], Re Bedia Vs. Genreal Accident, Fir and Life Assurance
Corporation Ltd. [1948 (2) All ER 995] and Bourne (Inspector
G of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576],
we specifically hold that giving the literal interpretation to the
Section would lead to absurdity and some unwanted results,
as had already been pointed out in Antulay's case (cited supra)
(see the emphasis supplied to para 24 of Antulay's judgment).
H
ABHAY SINGH CHAUTALA v. C.B.I. 989
[V.S. SIRPURKAR, J.]
30. Another novel argument was advanced basing on the A
language of Sections 19(1) and (2). It was pointed out that two
different terms were used in the whole Section, one term being
"public servant" and the other being "a person". It was, therefore,
urged that since the two different terms were used by the
Legislature, they could not connote the same meaning and they B
had to be read differently. The precise argument was that the
term "public servant" in relation to the commission of an offence
connotes the time period of the past whereas the term "a
person" in relation to the sanction connotes the time period of
the present. Therefore, it was urged that since the two terms c
are not synonymous and convey different meanings in respect
of time/status of the office, the term "public servant" should
mean the "past office" while "person" should mean the "present
status/present office". While we do agree that the different terms
used in one provision would have to be given different meaning,
0
we do not accept the argument that by accepting the
interpretation of Section 19(1) in Antulay's case, the two terms
referred to above get the same meaning. We also do not see
how this argument helps the present accused. The term "public
servant" is used in Section 19(1) as Sections 7, 10, 1 and 13 E
which are essentially the offences to be committed by public
servants only. Section 15 is the attempt by a public servant to
commit offence referred to in Section 13(1 )(c) or 13(1 )(d).
Section 19(1) speaks about the cognizance of an offence
committed by a public servant. It is not a cognizance of the
public servant. The Court takes cognizance of the offence, and F
not the accused, meaning, the Court decides to consider the
fact of somebody having committed that offence. In case of this
Act, such accused is only a public servant. Then comes the next
stage that such cognizance cannot be taken unless there is a
previous sanction given. The sanction is in respect of the G
accused who essentially is a public servant. The use of the term
"a person" in sub-Sections (a), (b) and (c) only denotes an
"accused". An "accused" means who is employed either with
the State Government or with the Central Government or in case
of any other person, who is a public servant but not employed H
990 SUPREME COURT REPORTS [2011] 10 S.C.R.
A with either the State Government or the Central Government. It
is only "a person" who is employed or it is only "a person" who
is prosecuted. His capacity as a "public servant" may be
different but he is essentially "a person" - an accused person,
because the Section operates essentially qua an accused
B person. It is not a "public servant" who is employed; it is
essentially "a person" and after being employed, he becomes
a "public servant" because of his position. It is, therefore, that
the term "a person" is used in clauses (a), (b) and (c). The key
words in these three clauses are "not removable from his office
c save by or with the sanction of .... ". It will be again seen that
the· offences under Sections 7, 10, 11and13 are essentially
committed by those persons who are "public servants". Again,
when it comes to the removal, it is not a removal of his role as
a "public servant", it is removal of "a person" himself who is
0 acting as a "public servant". Once the Section is read in this
manner, then there is no question of assigning the same
meaning to two different terms in the Section. We reject this
argument.
31. Another novel argument was raised on the basis of the
E definition of "public servant" as given in Section 2(c) of the Act.
The argument is based more particularly on clause 2(c)(vi)
which provides that an arbitrator, on account of his position as
such, is public servant. The argument is that some persons, as
contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn
F the character of a public servant only for a limited time and if
after renouncing that character of a public servant on account
of lapse of time or non-continuation of their office they are to
be tried for the abuse on their part of the offices that they held,
then it would .be a very hazardous situation. We do not think
G so. If the person concerned at the time when he is to be tried
is not a public servant, then there will be no necessity of a
sanction at all. Section 19(1) is very clear on that issue. We
do not see how it will cause any hazardous situation. Similarly,
it is tried to be argued that a Vice-Chancellor who is a public
H servant and is given a temporary assignment of checking the
ABHAY SINGH CHAUTALA v. C.B.I. 991
[V.S. SIRPURKAR, J.]
papers or conducting examination or being invigilator by virtue A
of which he is a public servant in an entirely different capacity
as from that of a Professor or a Vice-Chancellor, commits an
offence in the temporary capacity, then he would not be entitled
to the protection and that will be causing violence to such public
servant and, therefore, such could not have been the intention B
of the Legislature. We feel that the example is wholly irrelevant
in the light of the clearest possible dictum in Antulay's case
(cited supra) and in Prakash Singh Badal v. State of Punjab
(cited supra). If the concerned person continues to be a Vice-
Chancellor and if he has abused his office as Vice-Chancellor, c
there would be no doubt that his prosecution would require a
sanction. So, it will be a question of examining as to whether
such person has abused his position as a Vice-Chancellor and
whether he continues to be a Vice-Chancellor on the date of
taking of the cognizance. If, however, he has not abused his 0
position as Vice-Chancellor but has committed some other
offence which could be covered by the sub-Sections of Section
19, then there would be no necessity of any sanction.
32. Same argument was tried to be raised on the question
of plurality of the offices held by the public servant and the doubt E
arising as to who would be the sanctioning authority in such
case. In the earlier part of the judgment, we have already
explained the concept of doubt which is contemplated in the
Act, more particularly in Section 19(2). The law is very clear in
that respect. The concept of 'doubt' or 'plurality of office' cannot F
be used to arrive at a conclusion that on that basis, the
interpretation of Section 19(1) would be different from that given
in Antulay's case (cited supra) or Prakash Singh Badal v.
State of Punjab (cited supra). We have already explained the
situation that merely because a concept of doubt is G
contemplated in Section 19(2), it cannot mean that the public
servant who has abused some other office than the one he is
holding could not be tried without a sanction. The learned senior
counsel tried to support their argument on the basis of the
theory of "legal fiction". We do not see as to how the theory of H
992 SUPREME COURT REPORTS (2011] 10 S.C.R.
A "legal fiction" can work in this case. It may be that the appellants
in this case held more than one offices during the check period
which they are alleged to have abused; however, there will be
no question of any doubt if on the date when the cognizance is
taken, they are not continuing to hold that very office. The
B relevant time, as held in S.A. Venkataraman Vs. State (cited
supra), is the date on which the cognizance is taken. If on that
date, the appellant is not a public servant, there will be no
question of any sanction. If he continues to be a public servant
but in a different capacity or holding a different office than the
c one which is alleged to have been abused, still there will be no
question of sanction and in that case, there will also be no
question of any doubt arising because the doubt can arise only
when the sanction is necessary. In case of the present
appellants, there was no question of there being any doubt
because basically there was no question of the appellants'
0
getting any protection by a sanction.
33. We do not, therefore, agree with learned Senior
Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing
for the appellants, that the decision in Antulay's case (cited
E supra) and the subsequent decisions require any
reconsideration for the reasons argued before us. Even on
merits, there is no necessity of reconsidering the relevant ratio
laid down in Antulay's case (cited supra).
F 34. Thus, we are of the clear view that the High Court was
absolutely right in relying on the decision in Prakash Singh
Badal v. State of Punjab (cited supra) to hold that the
appellants in both the appeals had abused entirely different
office or offices than the one which they were holding on the
G date on which cognizance was taken and, therefore, there was
no necessity of sanction under Section 19 of the Act as held in
K. Karunakaran v. State of Kera/a (cited supra) and the later
decision in Prakash Singh Badal v. State of Punjab (cited
supra). The appeals are without any merit and are dismissed.
H B.B.B. Appeals dismissed.
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