Kalicharan Mahapatra v. State of Orissa

Case Summary

Full Case Details

2. Appellant was an IPS Officer who reached upto the level of Superintendent of
   Police in the State Police Service, Orissa. Based on some sleuth information raid was
   conducted in the residence of the appellant on 12-5-1990 and a good amount of cash
   and jewellery were recovered. A case was registered against him under section 13(2)
   of the Prevention of Corruption Act, 1988 (for short “the Act”). On 31-12-1990
   appellant retired from service but the investigation into the case continued. On 30-9-
   1992 the Vigilance Department submitted a charge-sheet against the appellant for the
   offence under Section 13(2) read with Section 13(1)(e) of the act.
3. The main contention of the appellant was that the legislature did not include a
   retired public servant within the purview of the Act and that there is no mention in the
   Act about a person who ceased to be a public servant. He invited our attention to
   Section 197 of the Code which envisages sanction for prosecution of public servants
   and pointed out that the section is now applicable to former public servants also by
   virtue of the specific words in the Section “any person who is or was……a public
   servant”. According to the counsel since such words have not been employed in any
   of the provisions of the Act it could be launched or continued against a person who,
   though was a public servant at the time of commission of the offence, ceased to be so
   subsequently.
4. “Public servant” is defined in Section 2(c) of the Act. It does not include a person
   who ceased to be a public servant. Chapter III of the Act which contains provisions
   for offences and penalties does not point to any person who became a non-public
   servant, according to the counsel.
5. Among the provisions subsumed in the Chapter, Sections 8,9,12 and 15 deal with
   offences committed by persons who need not be public servants, though all such
   offences are intertwined with acts of public servants. The remaining provisions in the
   Chapter deal with offences committed by public servants. Section 7 of the Act
   contemplates offence committed by a person who expects to be public servant.
6. There is no indication anywhere in the above provisions that an offence committed
   by a public servant under the Act would vanish off from penal liability at the moment
   he demits his office as public servant. His being a public servant is necessary when he
   commits the offence in order to make him liable under the Act. He cannot commit any
   such offence after he demits his office. If the interpretation now sought to be placed
   by the appellant is accepted it would lead to the absurd position that any public
   servant could commit the offences under the Act soon before retiring or demiting his
   office and thus avert any prosecution for it or that when a public servant is prosecuted
   for an offence under the Act he can secure an escape by protracting the trial till the
   date of superannuation.
7. Learned counsel for the appellant invited our attention to Section 19(1) of the Act
   which reads thus:
   “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.”
8. It was contended that if the case does not fall under sub-clause (a) or sub-clause (b)
   it should necessarily fall under sub-clause (c) and otherwise no prosecution can lie for
   any offence under this Act. A person who ceased to be public servant cannot be
   removed from any office, and hence it is contended that he cannot be prosecuted for
   any offence under the Act.
9. Section 19(1) of the Act is in para materia with Section 6(1) of the preceding
   enactment i.e. Prevention of corruption Act, 1947 (the old Act). When a similar
   contention was raised before a three Judge Bench of this court regarding Section 6 of
   the Old Act in S.A. Venkataraman v. The State [1958 SCR 1040], that contention
   was repelled. It was held thus:
   “The words in s. 6(1) of the Act are clear enough and they must be given
   effect to. There is nothing in the words used in s.6(1) to even remotely suggest
   that previous sanction was necessary before a court could take cognizance of
   the offences mentioned therein in the case of a person who had ceased to be a
   public servant at the time the court was asked to take cognizance, although he
   had been such a person at the time the offence was committed. It was
   suggested that cl.(c) in s.6(1) refers to persons other than those mentioned in
   cls. (a) and (b). The words ‘is employed’ are absent in this clause which would,
   therefore, apply to a person who had ceased to be a public servant though he
   was so at the time of the commission of the offence. Clause (c) cannot be
   construed in this way. The expressions ‘in the case of a person’ and ‘in the case
   of any other person’ must refer to a public servant having regard to the first
   paragraph of the sub-section. Clauses (a) and (b), therefore, servant who is
   employed in connection with the affairs of the Union or a State and is not
   removable from his office save by or with the sanction of the central
   Government or the State Government and cl.(c) would cover the case
   of any other public servant whom a competent authority could remove from
   his office. The more important words in cl.(c) are ‘of the authority competent
   to remove him from his office’.”
   The same view was adopted by another three Judge Bench in C.R. Bansi v. State of
   Maharashtra [1971(3) SCR 236]. This was followed in State of West Bengal v.
   Manmal Bhutoria [1977 (3) SCR 758]. The Constitution Bench in K. Veeraswami v.
   Union of India [1991(3) SCC 655] upheld the view that no sanction is required to
   prosecute a public servant after retirement.
10. Learned counsel, however, contended that the legal position must be treated as
    changed under the Prevention of Corruption Act of 1988 since parliament has in the
    meanwhile changed the wording in section 197 of the Code. The provision provided a
    check against launching prosecution proceedings against a public servant on the
    accusation of having committed an offence while acting or purporting to act in the
    discharge of his official duty. For such prosecution sanction of the Government is
    made a condition precedent under Section 197 of the Code of criminal procedure
    1898 (the old code). But such a sanction was not then necessary when a retired public
    servant was prosecuted. However, in the corresponding provision of the present code
    (Section 197) the necessity for previous sanction is made applicable to former public
    servants also by using the words “when any person who is or was a public servant”.
    The contention here is that the earlier decisions of the court were rendered at a time
    when sanction for prosecution was not contemplated in Section 197 of the code as for
    a public servant who has retired from service. Hence, according to him those
    decisions are of no help to sustain the same view now.
11. In R. Balakrishna Pillai v. State of Kerala [1996 (1) SCC 478] learned Chief
    Justice Ahmadi has referred to the law commission’s report which suggested an
    amendment to Section 197 of the Code. The observation of the law commission in
    paragraph 15.123 of its Report reads thus:
    “It appears to us that protection under the section is needed as much after
    retirement of the public servant as before retirement. The protection afforded
    by the section would be rendered illusory if it were open to a private person
    harbouring a grievance to wait until the public servant ceased to hold his
    official position, and then to lodge a complaint. The ultimate justification for
    the protection conferred by Section 197 is the public interest in seeing that
    official acts do not lead to needless or vexatious prosecutions. It should be left
    to the Government to determine from that point of view the question of
    the expediency of prosecuting any public servant.”
    Their Lordships after referring to the above report have observed: “It was in
    pursuance of this observation that the expression ‘is’ to make the sanction applicable
    even in cases where a retired public servant is sought to be prosecuted.”
12. It must be remembered that in spite of bringing such a significant change to
    section 197 of the Code in 1973, the Parliament was circumspect enough not to
    change the wording in Section 19 of the Act which deals with sanction. The reason is
    obvious. The sanction contemplated in Section 197 of the Code concerns a public
    servant who “is accused of any offence alleged to have been committed by him while
    acting or purporting to act in the discharge of his official duty”, whereas the offences
    contemplated in the P.C. Act are those which cannot be treated as acts either directly
    or even purportedly done in the discharge of his official duties. Parliament must have
    desired to maintain the distinction and hence the wording in the corresponding
    provision in the former P.C. Act was materially imported in the new P.C. Act, 1988
    without any change in spite of the change made in section 197 of the Code.
13. The result of the above discussion is thus: A public servant who committed an
    offence mentioned in the Act, while he was a public servant when the court takes
    cognizance of the offence. But if he ceases to be a public servant by that time the
    court can take cognizance of offence without any such sanction. In other words, the
    public servant who committed the offence while he was public servant is liable to be
    prosecuted whether he continues in office or not at the time of trial or during the
    pendency of the prosecution.
14. The Special court and the High Court have, therefore, rightly repelled the
    preliminary objections of the appellant. Accordingly we dismiss this appeal.