Abhay Singh Chautala v. C.B.I
(2011) 7 SCC 141
(2011)
Hon’ble Judges/Coram: V.S. Sirpurkar and T.S. Thakur, JJ.
Case Summary
| Citation | |
| Keywords | |
| Facts | |
| Issues | |
| Contentions | |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
V.S. SIRPURKAR, J. This judgment will dispose of two Special Leave Petitions,
they being SLP (Crl.) No. 7384 of 2010 and SLP (Crl.) No. 7428 of 2010. While
Abhay Singh Chautala is the petitioner in the first Special Leave Petition, the second
one has been filed by Shri Ajay Singh Chautala. The question involved is identical in
both the SLPs and hence they are being disposed of by a common judgment.
- Whether the sanction under Section 19 of The Prevention of Corruption Act
(hereinafter called “the Act” for short) was necessary against both the appellants and,
therefore, whether the trial which is in progress against both of them, a valid trial, is
common question. This question was raised before the Special Judge, CBI before
whom the appellants are being tried for the offences under Sections 13(1) (e) and
13(2) of the Prevention of Corruption Act read with Section 109 of Indian Penal Code
in separate trials. - Separate charge sheets were filed against both the appellants for the
aforementioned offences by the CBI. It was alleged that both the accused while
working as the Members of Legislative Assembly had accumulated wealth
disproportionate to their known sources of income. The charges were filed on the
basis of the investigations conducted by the CBI. This was necessitated on account of
this Court’s order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to
investigate the JBT Teachers Recruitment Scam. The offences were registered on
24.5.2004. The CBI conducted searches and seized incriminating documents which
revealed that Shri Om Prakash Chautala and his family had acquired movable and
immovable properties valued at Rs.1,467 crores. On this basis a Notification came to
be issued on 22.2.2006 under Sections 5 and 6 of the DSPE Act with the consent of
the Government of Haryana extending powers and jurisdiction under the DSPE Act to
the State of Haryana for investigation of allegations regarding accumulation of
disproportionate assets by Shri Om Prakash Chautala and his family members under
the Prevention of Corruption Act. A regular First Information Report then came to be
registered against Shri Om Prakash Chautala who is the father of both the appellants.
It is found that in the check period of 7.6.2000 to 8.3.2005, appellant Abhay Singh
Chautala had amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % of
appellant Abhay Singh Chautala’s known sources of income. During the check period,
Shri Abhay Singh Chautala was the Member of the Legislative Assembly Haryana,
Rori Constituency. Similarly, in case of Ajay Singh Chautala, his check period was
taken as 24.5.1993 to 31.5.2006 during which he held the following offices:- - 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan
- 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan
- 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from Bhiwani
Constituency - 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, - It was found that he had accumulated wealth worth Rs.27,74,74,260/- which
was 339.26 % of his known sources of income. It was on this basis that the charge
sheet came to be filed. - Admittedly, there is no sanction to prosecute under Section 19 of the Act against
both the appellants. - An objection regarding the absence of sanction was raised before the Special Judge,
who in the common order dated 2.2.2010, held that the allegations in the charge sheet
did not contain the allegation that the appellants had abused their current office as
member of Legislative Assembly and, therefore, no sanction was necessary. - 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. - The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing
for the appellants, urged that on the day when the charges were framed or on any date
when the cognizance was taken, both the appellants were admittedly public servants
and, therefore, under the plain language of Section 19 (1) of the Act, the Court could
not have taken cognizance unless there was a sanction. The learned senior counsel
analyzed the whole Section closely and urged that in the absence of a sanction, the
cognizance of the offences under the Prevention of Corruption Act could not have
been taken. In this behalf, learned senior counsel further urged that the judgment of
this Court in Prakash Singh Badal v. State of Punjab [2007 (1) SCC 1] as also the
relied on judgment in RS Nayak v. A R. Antulay [1984 (2) SCC 183] were not correct
and required reconsideration and urged for a reference to a Larger Bench. - Against these two judgments as also the judgments in Balakrishnan Ravi Menon
v. Union of India [2007 (1) SCC 45], K. Karunakaran v. State of Kerala [2007 (1)
SCC 59] and Habibullah Khan v. State of Orissa [1995 (2) SCC 437], this Court had
clearly laid down the law and had held that where the public servant had abused the
office which he held in the check period but had ceased to hold “that office” or was
holding a different office then a sanction would not be necessary. The learned
Solicitor General appearing for the respondent urged that the law on the question of
sanction was clear and the whole controversy was set at rest in AR Antulay’s case
70
(cited supra) which was followed throughout till date. The Solicitor General urged
that the said position in law should not be disturbed in view of the principle of stare
decisis. Extensive arguments were presented by both the parties requiring us now to
consider the question.
Section 19 runs as under:- “19. Previous sanction necessary for prosecution. (1) No
court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13
and 15 alleged to have been committed by a public servant, except with the previous
sanction, – (a) In the case of a person who is employed in connection with the affairs
of the Union and is not removable from his office save by or with the sanction of the
Central Government, of that Government; (b) In the case of a person who is employed
in connection with the affairs of a State and is not removable from his office save by
or with the sanction of the State Government, of that Government; (c) In the case of
any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous
sanction as required under sub-section (1) should be given by the Central Government
or the State Government or any other authority, such sanction shall be given by that
Government or authority which would have been competent to remove the public
servant from his office at the time when the offence was alleged to have been
committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973- (a)
No finding, sentence or order passed by a Special Judge shall be reversed or altered
by a Court in appeal, confirmation or revision on the ground of the absence of, or any
error, omission, irregularity in, the sanction required under sub-section (1), unless in
the opinion of that court, a failure of justice has, in fact, been occasioned thereby; (b)
No court shall stay the proceedings under this Act on the ground of any error,
omission or irregularity in the sanction granted by the authority, unless it is satisfied
that such error, omission or irregularity has resulted in a failure of justice; (c) No
court shall stay the proceedings under this Act on any other ground and no court shall
exercise the powers of revision in relation to any interlocutory order passed in
inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error,
omission or irregularity in, such sanction has occasioned or resulted in a failure of
justice the Court shall have regard to the fact whether the objection could and should
have been raised at any earlier stage in the proceedings.
Explanation: For the purposes of this Section, – (a) Error includes competency of the
authority to grant sanction; (b) A sanction required for prosecution includes reference
to any requirement that the prosecution shall be at the instance of a specified authority
or with the sanction of a specified person or any requirement of a similar nature.” - Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on
behalf of the appellants, firstly pointed out that the plain meaning of Section 19(1) of
the Act is that when any public servant is tried for the offences under the Act, a
sanction is a must. The learned senior counsel were at pains to point out that in the
absence of a sanction, no cognizance can be taken against the public servant under
Sections 7, 10, 11, 13 and 15 of the Act and thus, a sanction is a must. The plain
language of Section 19(1) cannot be disputed. The learned senior counsel argued that
Section 19(1) of the Act creates a complete embargo against taking cognizance of the
offences mentioned in that Section against the accused who is a public servant. The
learned senior counsel also argued that it is only when the question arises as to which
authority should grant a sanction that the sub-Section (2) will have to be taken
recourse to. However, where there is no duty of any such nature, the Court will be
duty bound to ask for the sanction before it takes cognizance of the offences
mentioned under this Section. - As against this, Shri Gopal Subramanium, learned Solicitor General, pointed out
the decision in RS Nayak v. A R. Antulay (cited supra) and the subsequent decisions
in Balakrishnan Ravi Menon v. Union of India (cited supra), K. Karunakaran v.
State of Kerala (cited supra), Habibullah Khan v. State of Orissa (cited supra) and
lastly, in Prakash Singh Badal v. State of Punjab (cited supra). - Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing on
behalf of the appellants, have no quarrel with the proposition that in all the above
cases, it is specifically held that where the alleged misconduct is in some different
capacity than the one which is held at the time of taking cognizance, there will be no
necessity to take the sanction. - To get over this obvious difficulty, the learned senior counsel appearing on behalf
of the appellants contended that the basic decision in RS Nayak v. A R. Antulay
(cited supra) was not correctly decided, inasmuch as the decision did not consider the
plain language of the Section which is clear and without any ambiguity. The learned
senior counsel contended that where the language is clear and admits of no ambiguity,
the Court cannot reject the plain meaning emanating out of the provision. Further, the
learned senior counsel pointed out that even in the judgments following the judgment
in RS Nayak v. A R. Antulay (cited supra) upto the judgment in the case of Prakash
Singh Badal v. State of Punjab (cited supra) and even thereafter, the learned Judges
have not considered the plain meaning and on that count, those judgments also do not
present correct law and require reconsideration. Another substantial challenge to the
judgment in RS Nayak v. A R. Antulay (cited supra) is on account of the fact that the
law declared to the above effect in RS Nayak v. A R. Antulay (cited supra) was obiter
dictum, inasmuch as it was not necessary for the Court to decide the question, more
particularly, decided by the Courts in paragraphs 23 to 26. The learned senior counsel
pointed out that, firstly, the Court in RS Nayak v. A R. Antulay (cited supra), came to
the conclusion that Shri Antulay who was a Member of the Legislative Assembly,
was not a public servant. It is contended that once that finding was arrived at, there
was no question of further deciding as to whether, the accused being a public servant
in a different capacity, the law required that there had to be a sanction before the
Court could take the cognizance. Learned senior counsel further argued that where the
Court makes an observation which is either not necessary for the decision of the court
or does not relate to the material facts in issue, such observation must be held as
obiter dictum. The learned senior counsel also argued that the whole class of public
servant would be deprived of the protection if the decision in RS Nayak v. A R.
Antulay (cited supra) is followed.
For this purpose, learned senior counsel argued that in such case, public servants
would be exposed to frivolous prosecutions which would have disastrous effects on
their service careers, though they are required to be insulated against such false,
frivolous and motivated complaints of wrong doing. It is then argued that the decision
in K. Veeraswami v. Union of India [1991 (3) SCC 655] has in fact removed the very
foundation of the decision in RS Nayak v. A. R. Antulay (cited supra) in respect of
the sanction. It is also argued that, in effect, the decision in RS Nayak v. A R. Antulay
(cited supra) has added further proviso to the effect “provided that nothing in this subSection shall apply to a case where at the time of cognizance, the public servant is
holding a different post with a different removing authority from the one in which the
offence is alleged to have been committed”. It is argued that such an addition would
be clearly impermissible as it would negate the very foundation of criminal law which
requires a strict interpretation in favour of the accused and not an interpretation which
results into deprivation of the accused of his statutory rights. - We do not think the finding given in Antulay’s case (cited supra) was in any
manner obiter and requires reconsideration. We, therefore, reject the argument on that
count. - There is one more reason, though not a major one, for not disturbing the law
settled in Antulay’s case (cited supra). That decision has stood the test of time for last
over 25 years and it is trite that going as per the maxim stare decisis et non quieta
movere, it would be better to stand by that decision and not to disturb what is settled.
This rule of interpretation was approved of by Lord Coke who suggested – “those
things which have been so often adjudged ought to rest in peace”. - This leaves us with the other contention raised by learned Senior Counsel Shri
Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants. The learned
senior counsel contended that the decision in Antulay’s case (cited supra) is hit by the
doctrine of per incuriam. We feel that the resultant argument on the part of the
learned senior counsel is not correct. In support of their argument, the learned senior
counsel contended that in Antulay’s case (cited supra), Section 6(2) of the 1947 Act,
as it therein existed, was ignored. In short, the argument was that Section 6(2) which
is pari materia with Section 19(2) of the Act provides that in case of doubt as to
which authority should give the sanction, the time when the offence is alleged to have
been committed is relevant. The argument further goes on to suggest that if that is so,
then the Act expressly contemplates that a public servant may be holding office in a
different capacity from the one that he was holding when the offence is alleged to
have been committed at the time when cognizance is taken so as to cause doubt about
the sanctioning authority. Thus, there would be necessity of a sanction on the date of
cognizance and, therefore, in ignoring this aspect, the decision in Antulay’s case
(cited supra) has suffered an illegality. Same is the argument in the present case. - This argument is basically incorrect. In Antulay’s case (cited supra), it is not as if
Section 6(2) of the 1947 Act as it then existed, was ignored or was not referred to, but
the Constitution Bench had very specifically made a reference to and had interpreted
Section 6 as a whole. Therefore, it cannot be said that the Constitution Bench had
totally ignored the provisions of Section 6 and more particularly, Section 6(2). Once
the Court had held that if the public servant had abused a particular office and was not
holding that office on the date of taking cognizance, there would be no necessity to
obtain sanction. It was obvious that it was not necessary for the Court to go up to
Section 6(2) as in that case, there would be no question of doubt about the sanctioning
authority. In our opinion also, Section 6(2) of the 1947 Act, which is pari materia to
Section 19(2), does not contemplate a situation as is tried to be argued by the learned
senior counsel. We do not agree with the proposition that the Act expressly
contemplates that a public servant may be holding office in a different capacity from
the one that he was holding when the offence is alleged to have been committed at the
time when cognizance is taken. That is not, in our opinion, the eventuality
contemplated in Section 6(2) or Section 19(2), as the case may be. In Antulay’s case
(cited supra), the Court went on to hold that where a public servant holds a different
capacity altogether from the one which he is alleged to have abused, there would be
no necessity of sanction at all. This view was taken on the specific interpretation of
Section 6 generally and more particularly, Section 6(1)(c), which is pari materia to
Section 19(1)(c) of the Act. Once it was held that there was no necessity of sanction at
all, there would be no question of there being any doubt arising about the sanctioning
authority. The doubt expressed in Section 19(2), in our opinion, is not a pointer to
suggest that a public servant may have abused any particular office, but when he
occupies any other office subsequently, then the sanction is a must. That will be the
incorrect reading of the Section. The Section simply contemplates a situation where
there is a genuine doubt as to whether sanctioning authority should be the Central
Government or the State Government or any authority competent to remove him. The
words in Section 19(2) are to be read in conjunction with Sections 19(1)(a), 19(1)(b)
and 19(1)(c). These clauses only fix the sanctioning authority to be the authority
which is capable of “removing a public servant”. Therefore, in our opinion, the
argument based on the language of Section 6(2) or as the case may be, Section 19(2),
is not correct. - It is in the light of this that the Court did not have to specify as to under what
circumstances would a duty arise for locating the authority to give sanction. The
doubt could arise in more manners than one and in more situations than one, but to
base the interpretation of Section 19(1) of the Act on the basis of Section 19(2) would
be putting the cart before the horse. The two Sections would have to be interpreted in
a rational manner. Once the interpretation is that the prosecution of a public servant
holding a different capacity than the one which he is alleged to have abused, there is
no question of going to Section 6(2) / 19(2) at all in which case there will be no
question of any doubt. It will be seen that this interpretation of Section 6(1) or, as the
case may be, Section 19(1), is on the basis of the expression “office” in three subclauses of Section 6(1), or the case may be, Section 19(1). For all these reasons,
therefore, we are not persuaded to accept the contention that Antulay’s case (cited
supra) was decided per incuriam of Section 6(2). In our opinion, the decision in K.
Veeraswami v. Union of India (cited supra) is not apposite nor does it support the
contention raised by the learned senior counsel as regards Antulay’s case (cited supra)
being per incuriam of Section 6(2). - The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing
for the appellants, in support of their argument that Antulay’s case (cited supra)
require reconsideration, urged that that interpretation deprives the entire class of
public servants covered by the clear words of Section 6(1)/19(1) of a valuable
protection. It was further urged that such interpretation would have a disastrous effect
on the careers of the public servants and the object of law to insulate a public servant
from false, frivolous, malicious and motivated complaints of wrong doing would be
defeated. It was also urged that such interpretation would amount to re-writing of
Section 19(1) and as if a proviso would be added to Section 19(1) to the following
effect:- “Provided that nothing in this sub-Section shall apply to a case where at the
time of cognizance, the public servant is holding a different post with a different
removing authority from the one in which the offence is alleged to have been
committed.”
Lastly, it was urged that such an interpretation would negate the very foundation of
criminal law, which requires a strict interpretation in favour of the accused. Most of
these questions are already answered, firstly, in Antulay’s case (cited supra) and
secondly, in Prakash Singh Badal v. State of Punjab (cited supra). Therefore, we
need not dilate on them. We specifically reject these arguments on the basis of
Antulay’s case (cited supra) itself which has been relied upon in Prakash Singh
Badal v. State of Punjab (cited supra). The argument regarding the addition of the
proviso must also fall as the language of the suggested proviso contemplates a
different “post” and not the “office”, which are entirely different concepts. That is
apart from the fact that the interpretation regarding the abuse of a particular office and
there being a direct relationship between a public servant and the office that he has
abused, has already been approved of in Antulay’s case (cited supra) and the other
cases following Antulay’s case (cited supra) including Prakash Singh Badal v. State
of Punjab (cited supra). We, therefore, reject all these arguments. - It was also urged that a literal interpretation is a must, particularly, to sub- Section
(1) of Section 19. That argument also must fall as sub-Section (1) of Section 19 has to
be read with in tune with and in light of sub-Sections (a), (b) and (c) thereof. We,
therefore, reject the theory of litera regis while interpreting Section 19(1). On the
same lines, we reject the argument based on the word “is” in sub-Sections (a), (b) and
(c). It is true that the Section operates in praesenti; however, the Section contemplates
a person who continues to be a public servant on the date of taking cognizance.
However, as per the interpretation, it excludes a person who has abused some other
office than the one which he is holding on the date of taking cognizance, by necessary
implication. Once that is clear, the necessity of the literal interpretation would not be
there in the present case. 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). - Another novel argument was advanced basing on the language of Sections 19(1)
and (2). It was pointed out that two different terms were used in the whole Section,
one term being “public servant” and the other being “a person”. It was, therefore,
urged that since the two different terms were used by the Legislature, they could not
connote the same meaning and they had to be read differently. The precise argument
was that the term “public servant” in relation to the commission of an offence
connotes the time period of the past whereas the term “a person” in relation to the
sanction connotes the time period of the present. Therefore, it was urged that since the
two terms are not synonymous and convey different meanings in respect of
time/status of the office, the term “public servant” should mean the “past office” while
“person” should mean the “present status/present office”. While we do agree that the
different terms used in one provision would have to be given different meaning, we
do not accept the argument that by accepting the interpretation of Section 19(1) in
Antulay’s case, the two terms referred to above get the same meaning. We also do not
see how this argument helps the present accused. The term “public servant” is used in
Section 19(1) as Sections 7, 10, 1 and 13 which are essentially the offences to be
committed by public servants only. Section 15 is the attempt by a public servant to
commit offence referred to in Section 13(1)(c) or 13(1)(d). Section 19(1) speaks about
the cognizance of an offence committed by a public servant. It is not a cognizance of
the public servant. The Court takes cognizance of the offence, and not the accused,
meaning, the Court decides to consider the fact of somebody having committed that
offence. In case of this Act, such accused is only a public servant. Then comes the
next stage that such cognizance cannot be taken unless there is a previous sanction
given. The sanction is in respect of the accused who essentially is a public servant.
The use of the term “a person” in sub-Sections (a), (b) and (c) only denotes an
“accused”. An “accused” means who is employed either with the State Government or
with the Central Government or in case of any other person, who is a public servant
but not employed with either the State Government or the Central Government. It is
only “a person” who is employed or it is only “a person” who is prosecuted. His
capacity as a “public servant” may be different but he is essentially “a person” – an
accused person, because the Section operates essentially qua an accused person. It is
not a “public servant” who is employed; it is essentially “a person” and after being
employed, he becomes a “public servant” because of his position. It is, therefore, that
the term “a person” is used in clauses (a), (b) and (c). The key words in these three
clauses are “not removable from his office save by or with the sanction of ….”. It will
be again seen that the offences under Sections 7, 10, 11 and 13 are essentially
committed by those persons who are “public servants”. Again, when it comes to the
removal, it is not a removal of his role as a “public servant”, it is removal of “a
person” himself who is acting as a “public servant”. Once the Section is read in this
manner, then there is no question of assigning the same meaning to two different
terms in the Section. We reject this argument. - Another novel argument was raised on the basis of the definition of “public
servant” as given in Section 2(c) of the Act. The argument is based more particularly
on clause 2(c)(vi) which provides that an arbitrator, on account of his position as
such, is public servant. The argument is that some persons, as contemplated in
Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of a public servant only
for a limited time and if after renouncing that character of a public servant on account
of lapse of time or non-continuation of their office they are to be tried for the abuse on
their part of the offices that they held, then it would be a very hazardous situation. We
do not think so. If the person concerned at the time when he is to be tried is not a
public servant, then there will be no necessity of a sanction at all. Section 19(1) is
very clear on that issue. We do not see how it will cause any hazardous situation. - Same argument was tried to be raised on the question of plurality of the offices
held by the public servant and the doubt arising as to who would be the sanctioning
authority in such case. In the earlier part of the judgment, we have already explained
the concept of doubt which is contemplated in the Act, more particularly in Section
19(2). The law is very clear in that respect. The concept ofdoubt' orplurality of
office’ cannot be used to arrive at a conclusion that on that basis, the interpretation of
Section 19(1) would be different from that given in Antulay’s case (cited supra) or
Prakash Singh Badal v. State of Punjab (cited supra). We have already explained the
situation that merely because a concept of doubt is contemplated in Section 19(2), it
cannot mean that the public servant who has abused some other office than the one he
is holding could not be tried without a sanction. The learned senior counsel tried to
support their argument on the basis of the theory of “legal fiction”. We do not see as
to how the theory of “legal fiction” can work in this case. It may be that the appellants
in this case held more than one offices during the check period which they are alleged
to have abused; however, there will be no question of any doubt if on the date when
the cognizance is taken, they are not continuing to hold that very office. The relevant
time, is the date on which the cognizance is taken. If on that date, the appellant is not
a public servant, there will be no question of any sanction. If he continues to be a
public servant but in a different capacity or holding a different office than the one
which is alleged to have been abused, still there will be no question of sanction and in
that case, there will also be no question of any doubt arising because the doubt can
arise only when the sanction is necessary. In case of the present appellants, there was
no question of there being any doubt because basically there was no question of the
appellants’ getting any protection by a sanction. - We do not, therefore, agree with learned Senior Counsel Shri Mukul Rohtagi as
well as Shri U.U. Lalit arguing for the appellants, that the decision in Antulay’s case
(cited supra) and the subsequent decisions require any reconsideration for the reasons
argued before us. Even on merits, there is no necessity of reconsidering the relevant
ratio laid down in Antulay’s case (cited supra). - Thus, we are of the clear view that the High Court was absolutely right to hold
that the appellants in both the appeals had abused entirely different office or offices
than the one which they were holding on the date on which cognizance was taken and,
therefore, there was no necessity of sanction under Section 19 of the Act. The appeals
are without any merit and are dismissed.
