Holding

Section 12 of the Prevention of Corruption Act, 1988 is a distinct offence and is excluded from the sanction requirement of Section 19; courts may take cognizance of a Section 12 offence without prior government sanction.

Issues considered

Whether prior sanction under Section 19 of the Prevention of Corruption Act, 1988 is required to take cognizance of an offence punishable under Section 12 of the same Act.

Legislation cited

Prevention of Corruption Act, 1988s. 12, s. 19

Subjects

Prevention of Corruption ActSection 12Section 19previous sanctionabatementstatutory interpretationcognizancepublic servantcorruptionabettor

Judgment

[2009] 14 (ADDL.) S.C.R. 385

~ STATE THROUGH CENTRAL BUREAU OF A
..
~
INVESTIGATION
v.
PARMESHWARAN SUBRAMANI AND ANR.
(Criminal Appeal No. 1758 of 2009)
B
SEPTEMBER 11, 2009
[R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.]
",....
Prevention of Corruption Act, 1988: s.12 - Previous
sanction of government as required under s. 19 is not c
necessary for taking cognizance of offence punishable under
s. 12 of the Act.

Interpretation of Statutes: Courts cannot add words to a
statute or read words into it which are not there-Where there D
4
is no ambiguity and intention of legislature is clearly
conveyed, there is no scope for the Court to undertake any
exercise to read something into the provision which the
legislature in its wisdom consciously omitted - Such exercise
if undertaken by courts may amount to amending or altering
E
the statutory provision.

' The question which arose for consideration in the
present appeal was whether the Special Judge as well as
the High Court committed error in refusing to take
cognizance of the offence punishable under Section 12 F
of the Prevention of Corruption Act, 1988 alleged to have
been committed by the respondents on the ground that
there was no previous sanction of the government as
required under s.19 of the Act. The view taken by the
courts below was that though an accused can be G
charged independently under Section 12, the existence
of an offence under Section 12 is dependent upon
Section 7 or Section 11. Therefore, so long as a sanction
is required for punishment of the principal offence under
385 H
386 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A Section 7 or 11 of the Act, sanction would equally be
necessary in regard to punishment for abetment of those J..
offences which is covered under Section 12. . ...
;!.

,_
Allowing the appeal, the Court
B HELD: 1. Section 12 of the Prevention of Corruption
Act, in clear and categorical terms, speaks that whoever
abets any offence punishable under Section 7 or 11
whether or not that offence is committed in consequence
.,
of that abetment, shall be punishable with imprisonment ~
c for a term as provided thereunder. Thus abetment of any
offence punishable under Section 7 or 11 is itself a
distinct offence. The offence punishable under Section
7 or 11 whether actually committed by a public servant
is of no consequence. It is precisely for the said reason
/

D Section 19 of the Act specifically omits Section 12 from
its purview. The courts by process of interpretation 1. -'
cannot read Section 12 into Section 19 as it may amount
to rewriting the very Section 19 itself. It is settled law that
where there is no ambiguity and the intention of the
E legislature is clearly conveyed, there is no scope for the
court to undertake any exercise to read something into
the provisions which the legislature in its wisdom
consciously omitted. Such an exercise if undertaken by \ .,
ll
the courts may amount to amending or altering the
F statutory .provisions. Where, the language is clear, the
~

intention of the legislature is to be gathered from the
language used. It is not the duty of the court either to .
enlarge the scope of legislation or the intention of the
legislature, when the language of the provision is plain.
The court cannot rewrite the legislation for the reason that
G
it had no power to legislate. The court cannot add words
to a statute or read words into it which are not there. The -+
court cannot, on an assumption that there is a defect or
an omission in the words used by the legislature, correct

H
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 387
PARMESHWARAN SUBRAMANI

~ or make up assumed deficiency, when the words are A
, clear and unambiguous. Courts have to decide what the
law is and not what it should be. The courts adopt a
construction which will carry out the obvious intention
of the legislature but cannot set at naught legislative
judgment because such course would be subversive of B
constitutional harmony. [Paras 14 and 15] [394-C-G; 394-
)
G-H; 395-A-C]
_._
Union of India & Anr. v. Deokinandan Aggarwal (1992)
Supp. (1) SCC 323; State of Jharkhand & Anr. v. Govind
c
' .. Singh (2005) 10 SCC 437, relied on.

Sharad Waman Bushake v. State of Maharashtra (1993)
Mah. L.J. 284;A.R.Antulay v. Ramdas Sriniwas Nayak
(1984) 2 sec 500, referred to.
:,J. D
2. The High Court fell into error in reading into
Section 19 of the Act, the prohibition not to take
cognizance of an offence punishable even under Section
12 of the Act without previous sanction of the
Government which is not otherwise provided for. The E

, ..
language employed in Section 19 of the Act is couched
in mandatory form directing the courts not to take
cognizance of an offence punishable under Sections 7,
10, 11, 13 and 15 only, alleged to have been committed
by a public servant, except with the previous sanction of
F
the Government. The legislature consciously in its
wisdom omitted the offence of abetment of any offence
punishable under Section 7 or 11 of the Act thereby
making its intention clear that no previous sanction as
such would be required in cases of offence punishable
under Section 12 of the Act. The High Court read G
something into Section 19 on its own thereby including
Section 12 also into its ambit, which is impermissible.
[Para 18] [397-F-H; 398-A-B]

H
388 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A Case Law Reference:

(1992) Supp. (1) sec 3.23 relied on Para 15
+
(1993) Mah. L.J. 284 referred to Para 16
"
(1984) 2 sec 500 referred to , Para 16
B
(2005) 1o sec 437 relied on Para 17

'(

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal ~
No. 1758 of 2009.
c
From the Judgment & Order dated 23.11.2006 of the High .. _.•

Court of Bombay at Goa in Criminal Revision Application No.
49 of 2006.

D H.P. Rawal, ASG, Subhash Kaushik, AK. Sharma, P.
Parmeswaran for the Appellants. 1,1._

Krishnan Venugopal, Santosh Kumar, Davesh Singh, Anu
Gupta, Dharmendra Kumar Sinha, Siddhartha Singh, Uday V.S.
Rathore for the Respondents.
E
The Judgment of the Court was delivered by

B.SUDERSHAN REDDY, J. 1. Leave granted. "
'\(

2. This· appeal, which has come before us by special
F leave, is directed against the judgment of the High Court of
Bombay at Goa dated 23.11.2006 in Criminal Revision
Application No. 49 of 2006, by which the learned Single Judge
affirmed the conclusion of the learned Special Judge, North
Goa, Panaji that previous sanction was necessary to prosecute
G a Public Servant under Section 12 of the Prevention of
Corruption Act, 1988. _,
3. The brief factual matrix of the case is as under:
On source information the Central Bureau of Investigation,
H
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 389
PARMESHWARAN SUBRAMANI [B. SUDERSHAN REDDY, J.]

Goa registered a preliminary enquiry being PE 2(A)/2002/CBI/ A
~
ACS against the respondent no. 1 and others. The respondent
~
No. 1 was the then Commissioner of Customs and Central
Excise, Panaji. It was alleged that respondent no. 1 along with
others purchased 48 ready built flats for Customs Department
from the respective firms at an exorbitant price of Rs. B
3,55,69, 150/- though the actual market value was much less than
the price paid. It was further alleged that undue favour of
... respondent no. 1 caused huge loss of Rs. 1.04 crores to the
j.
department. Shri Ram Avtar Yadav, Inspector CBI/ ACB/ Goa
was conducting the enquiry into said allegations . c
....
4. The respondent No. 2 was the Inspector of Central
Excise, Goa. It w~s alleged that on 24.9.2002, the respondent
no. 2 made a request on telephone to Shri Ram Avtar Yadav,
Inspector to meet him in connection with some personal work.
D
_;,J On the next day i.e. 25.9.2002, the respondent no. 2 met Shri
Ram Avtar Yadav, Inspector and during the course of meeting
he made a request on behalf of the respondent no. 1 to close
the case and also conveyed that the respondent no. 1 wanted
to meet him in connection with the said case and to offer some
gratification. On the same day, the Inspector (Complainant) E
lodged a written complaint against both the respondents before
Superintendent of Police, CBl/ACB/Goa. Accordingly, RCB(A)
~
/20J2/CBl/ACB/Goa, was registered against both the
respondents. Both the respondents met the complainant at a
restaurant and offered him a bribe of Rs. 1 lakh. On 26.9.2002, F
the respondent no. 1 withdrew an amount of Rs. 50,000/- from
his savings bank account and handed over the same to the
respondent no. 2 to deliver the said amount as part of the bribe
to the complainant. A trap was laid in the presence of two
independent witnesses. The respondent no. 2 was caught red G
+ handed while offering and delivering bribe on behalf of
respondent no. 1 at the residence of the complainant. Thereafter
on completion of the investigation charge sheet was filed in the
court of learned Special Judge against both the respondents
for the offences punishable under Section 1208 read with H
390 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R.

A Section 12 of the Prevention of Corruption Act, 1988
(hereinafter referred to as "the Act").
t
+-
5. The learned Special Judge having perused the
chargesheet and material on record came.
to the .conclusion
that previous sanction as required under Section 19 of the Act,
B
was necessary to prosecute a Public Servant for the offence
punishable under Section 12 of the Act and accordingly
declined to take cognizance of the offence. Being aggrieved '(

by the order of the learned Special Judge, the appellant filed ~
the Criminal Revision Application No. 49 of 2006 before the
c High Court of Bombay at Goa. The High Court dismissed the
revision of the appellant and upheld the discharge of the -·
respondents for want of sanction under Section 19 of the Act. ·

Hence this appeal.
D ~-
6. We have heard the learned counsel for the parties and
perused the material available on record.

7. The short question that arises for our consideration in
this appeal is whether any previous sanction as such is
E necessary for taking cognizance of an offence punishable under
Section 12 of the Act?
..
8. Shri H.P. Rawal, learned Additional Solicitor General --
appearing on behalf of the appellant submitted that the court
F is not precluded from taking cognizance of an offence
punishable under Section 12 of the Act against a public servant
inasmuch as the said provision does not provide for any such
previous sanction and the requirement of previous sanction is
only in respect of offences punishable under Sections 7, 10,
G 11, 13 and 15 of the Act.
-
9. Mis. Krishnan Venugopal, learned senior counsel and
Santosh Kumar, learned counsel for the respondents supported
the reasoning and conclusion of the High Court that previous
sanction for taking cognizance against a public servant would
H be equally necessary in respect of the offence punishable under
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 391
PARMESHWARAN SUBRAMANI [B. SUDERSHAN REDDY, J.]

Section 12 of the Act also.
A

10. In order to appreciate the submissions that were made
before us it may be necessary to notice the relevant provisions
of the Act. Section 12 of the Act which provides for punishment
for abetment of offences defined in Section 7 or 11 reads as B
under:

_"Section 12 - Punishment for abetment of offences
defined in section ·7 or 11. - Whoever abets any offence
punishable under Section 7 or Section 11 whether or not C
that offence is committed in consequence of that abetment,
shall be punishable with imprisonment for a term which
shall be not less than six months but which may extend to
five years and shall also be liable to fine.
·' 11. Section 19 of the Act which deals with previous D
sanction for prosecution of an offence punishable under
Sections 7, 10, 11, 13 and 15 alleged to have been committed
by a public servant, reads as under:

"Section 19 - Previous sanction necessary for E
prosecution. -

( (1) No court shall take cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous
~~~.- F
(a) in the case of a person who is employed in
connection with the affairs of the Union and is not
removable from his office save by or with the
sanction of the Central Government, of that . G
Government;

(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the
H
392 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
'

A sanction of the State Government, of that
Government; -t.
(c) in· the case of any other person, of the authority
competent to remove him from his office.
B (2) Where for any reason whatsoever any doubt arises as
to whether the previous sanction as required under sub-
section (1) should be given by the Central Government or
the State Government or any other authority, such sanction
shall be given by that Government or authority which would ~
-
c have been competent to remove the public· servant from
his office at the time when the offence was alleged to have
been committed.

(3) Notwithstanding anything contained in the Code of
D Criminal Procedure, 1973 (2 of 1974),-
;,.._
(a) no finding, sentence or order passed by a special
Judge shall be reversed or altered by a Court in
appeal, confirmation or revision on the ground of
the absence of, v1 any error, omission or irregularity
E 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
F 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
G on any other ground and no court shall exercise the
powers of revision in relation to any interlocutory ~
order passed in any inquiry, trial, appeal· or other
proceedings.

H (4) In determining under sub-section (3) whether the
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 393
; PARMESHWARAN SUBRAMANI [B. SUDERSHAN REDDY, J.)

absence of, or any error, omission or irregularity in, such A
~
sanction has occasioned or resulted in a failure of justice
the court shall have regard to the fact whether the objection
could and should have been raised at any earlier stage in
the proceedings.
B
Explanation.- For the purposes of this section,-

(a) error includes competency of the authority·to grant
• ~
sanction;

(b) a sanction required for prosecution includes c
reference to any requirement that the prosecution
shall be at the instance of a specified authority or
with the sanction of a specified person or any
requirement of a similar nature.
..,(_ D
12. _In the instant case, we are not concerned with the
question as to whether the respondents have committed any
offence punishable under Section 1208 of the Indian Penal
Code read with Section 12 of the Act. We have to proceed on
the basis of the allegations made by the appellant against the
respondents without going into the truth or otherwise of the E
allegations so made in the charge sheet. The issue that arises
for consideration is whether the learned Special Judge as well
as the High Court have committed any error in refusing to take
cognizance of the offence punishable under Section 12 of the
Act alleged to have been committed by the respondents on the F
ground that there has been no previous sanction of the
Government as required under Section 19 of the Act?

13. The courts below relying upon the decision in Sharad
Waman Bushake vs. State of Maharashtra 1 were of the view G
._i_ that Section 12 cannot be treated as being wholly distinct or
independent from Section 7 or 11 because it speaks of
abetment of those offences punishable under Section 7 or 11
as the case may be. The view taken by the High Court was that
1. [1993) Mah. L.J. 284. H
394 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. -..

A though an accused can be charged independently under
Section 12, the existence of an offence under Section 12 is
+
dependent upon Section 7 or 11. Therefore, so long as a
sanction is required for punishment of the principal offence
under Section 7 or 11 of the Act, sanction would equally be
B necessary in regard to punishment for abetment of those
offences.

14. In our considered opinion, the interpretation sought to •
be placed by the High Court on Section 19 of the Act is wholly ""'--
erroneous. The court at that stage cannot go into the question
c whether there was any abetment of any offence punishable
under Section 7 or 11 . Section 12 of the Act, in clear and
categorical terms, speaks that whoever abets any offence
punishable under Section 7 or 11 whether or not that offence
is committed in consequence of that abetment, shall be
D punishable with imprisonment for a term as provided .)"..

thereunder. It is thus clear that abetment of any offence
punishable under Section 7 or 11 is itself a distinct offence. The
offence punishable under Section 7 or 11 whether actually
committed by a public servant is of no consequence. It is
E precisely for the said reason Section 19 of the Act specifically
omits Section 12 from its purview. The courts by process of \
interpretation cannot read Section 12 into Section 19 as it may ...,.
/ amount to rewriting the very Section 19 itself. It is settled law
that where there is no ambiguity and the intention of the
F legislature is clearly conveyed, there is no scope for the court
to undertake any exercise to read something into the provisions
which the legislature in its wisdom consciously omitted. Such
an exercise if undertaken by the courts may amount to
amending or altering the statutory provisions.
G 15. In a plethora of cases, it has been stated that where,
the language is clear, the intention of the legislature is to be
gathered from the language used. It is not the duty of the court
either to enlarge the scope of legislation or the intention of the
legislature, when the language of the provision is plain. The
H
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 395
PARMESHWARAN SUBRAMANI [B. SUDERSHAN REDDY, J.]

court cannot rewrite the legislation for the reason that it had no A
~·
power to legislate. The court cannot add words to a statute or
read words ·into it which are not there. The court cannot, on an
assumption that there is a defect or an omission in the words
used by the legislature, correct or make up assumed
deficiency, when the words are clear and unambiguous. Courts 8
have to decide what the law is and not what it should be. The
courts adopt a construction which will carry out the obvious
• intention of the legislature but cannot set at naught legislative
..../· judgment because such course would be subversive of
constitutional harmony [See: Union of India & Anr. vs. c
Deokinandan Aggarwa/2].

16. In A.R. Antulay vs. Ramdas Sriniwas Nayak3 , it so
happened that a private complaint was made by the respondent
therein against the appellant after the requisite sanction under D
. ...!( Section 6 of Prevention of Corruption Act, 1947 was given by
the Government. The Court of Special Judge took cognizance
of the alleged offences under Section 8 ( 1) of the Criminal Law
Amendment Act, 1952. On behalf of the appellant an
application was made in that court questioning jurisdiction of
E
that court inter alia on the ground that it could not take
cognizance of any of the offences enumerated in Section 6 ( 1)
(a) and (b) of the said Act upon a private complaint of facts
~
constituting the offences. The courts below rejected the
contention. This Court observed: "It is well-established cannon
of construction that the court should read the section as it is F
and cannot rewrite it to suit its convenience; nor does any canon
of construction permit the court to read the section in such
manner as to render it to some extent otiose." This Court further
observed: "Punishment of the offender in the interest of the
society being one of the objects behind penal statutes enacted G
for larger good of the society, right to initiate proceedings
cannot be whittled down, circumscribed or fettered by putting

2. (1992) Supp. (1) sec 323.
3. (1984) 2 sec 500. H
396 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A it into a strait-jacket formula of locus standi. To hold that a
specific statutory exception exists: the court would require an
unambiguous statutory provision and the tangled web of
argument for drawing a far fetched implication cannot be a
substitute for an express statutory provision."
B
17. In State of Jharkhand & Anr. vs. Govind Singh4 this
Court once again reiterated that where the language is clear,
the intention of the legislature is to be gathered from the
language used and the attention should be paid to what has
been said as also to what has not been said. In that case the
C Jharkhand High Court held that even though there is no specific
provision in Section 52 (3) of the Indian Forest Act, 1927 as
amended by Bihar Act 9 of 1990, a vehicle seized for alleged
involvement in commission of forest offence can be released
on payment of fine in lieu of confiscation. The High Court took
D the view that it would be inequitable to direct confiscation and,
therefore, it was held that to meet the interest of justice the
power to impose fine in lieu of confiscation can be read into
under Section 52(3) of the Act. Accordingly, a fine was imposed
and the seizing authority was directed to release the vehicle
E on payment thereof. This Court interfered with the judgment
observing that the view taken by the High Court was against
the settled principles relating to statutory interpretation. It was
observed:

"Where, however, the· words were clear, there is no
F
obscurity, there is no ambiguity and the intention of the
legislature is clearly. conveyed, there is no scope for the
court to innovate or take upon itself the task of amending
or altering the statutory provisions. In that situation the
Judges should not proclaim that th13y are playing the role
G
. of a law-maker merely for an exhibition of judicial valour.
They have to remember that there is a line, though thin,
which separates adjudication from legislation. That line
should not be crossed or erased. This can be vouchsafed
H 4. (2005) 10 sec 437.
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. 397
PARMESHWARAN SUBRAMANI [B. SUDERSHAN REDDY, J.]

A
~- by "an alert recognition of the necessity not to cross it and
instinctive, as well as trained reluctance to do so". (See:
Frankfurter, "Some Reflections on the Reading of Statutes"
in Essays on Jurisprudence, Columbia Law Review,
p.51.)"
B
It was further observed:

" "Two principles of construction one relating to casus
-J. omissus and the other in regard to reading the statute as
a whole appear to be well settled. Under the first principle
a casus omissus cannot be supplied by the Court except
c
in the case of clear necessity and when reason for it is
found in the four comers of the statute itself but at the same
time a casus omissus should not be readily inferred and
~ • for that purpose all the parts of a statute or section must
D
f
_.J( be construed together and every clause of a section should
be construed with reference to the context and other
clauses thereof so that the construction to be put on a
particular provision makes a consistent enactment of the
whole statute. This would be more so if literal construction
of a particular clause leads to manifestly absurd or E
anomalous results which could not have been intended by
~- the Legislature."

18. Keeping in view of the aforesaid legal principles the
inevitable conclusion is that the High Court fell into error in F
reading into Section 19 of the Act, the prohibition not to take
cognizance of <;!n offence punishable even under Section 12 of
the Act without previous sanction of the Government which is
not otherwise provided for. The language employed in Section

. 19 of the Act is couched in mandatory form directing the courts
not to take cognizance of an offence punishable under Sections
7, 10, 11, 13 and 15 only, alleged to have been committed by
G

a public servant, except with the previous sanction of the
Government. The legislature consciously in its wisdom omitted
the offence of abetment of any offence punishable under Section
H
398 SUPREME COURT REPORTS [2009] 14 (ADDL.) $.C.R.

A 7 or 11 of the Act thereby making its intention clear that no
previous sanction as such would be required in cases of
offence punishable under Section 12 of the Act. The High Court
read something into Section 19 on its own thereby including
Section 12 also into its ambit, which in our opinion is
B impermissible.
19. The judgment of the High Court is clearly erroneous,
deserves to be set aside which we direct.
20. The appeal is accordingly allowed. ,_
I
r
c
D.G. Appeal allowed.

)

_)... )