Document Fragment View

Matching Fragments

J U D G M E N T (Arising out of SLP (C) No.19640 of 2004) WITH Criminal Appeal No.1279/06 @ SLP (Crl.)No.2697/2004, Civil Appeal No 5637/06 @ SLP (C)No.20000/2004, Criminal Appeal No.1281/06 @ SLP (Crl.)No.1620/2006, Civil Appeal No.5639/06 @ SLP (C)No.10071/2006, Civil Appeal No.5638/06 @ SLP (C)No. 20010/2004 and Criminal Appeal No.1280/06 @ SLP (Crl.)No. 3719/2006 Dr. ARIJIT PASAYAT, J.

Leave granted.

In each of these appeals challenge is to the judgment of the Punjab and Haryana High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code, 1860 (in short the 'IPC'). In the latter category of cases the question raised is either lack of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 (in short the 'Code') or the legality thereof.

It is the holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of sub- section (1) of Section 6 uses the expression office' and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for cluing or forbearing to do an official act (Section 161 IPC) or as a public servant abets offences punishable under Sections 161 and 163 (Section 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (Section 165 TPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression 'office' In the three sub-clauses of Section 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to he prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority who would he able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can he given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of A.P.)( 1979 (2) SCR 1007). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to fudge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would he in a position to know what was the power conferred on the office which the public servant holds, how that power could he abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office he by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference o knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant', sanction which is entitled to remove the public servant against whom sanction is sought from the office.

(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.

(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).

Section 72 IPC is also relevant. Same reads as follows:

Sections 8 and 9 of the Act correspond to Sections 162 and 163 of IPC. During the currency of Old Act, Sections 161 to 165A of IPC were operating. This Court had occasion to examine Section 5(1)(d) of the Old Act and Sections 161 and 162 IPC. It has been held that they constitute different offences. [See Ram Krishan and Anr. v. State of Delhi (AIR 1956 SC 476)] In view of the above, it would not be permissible to contend that a public servant would be covered by Section 13(1)(d) (similar to section 5(1)(d) of Old Act) and therefore the public servant would not be covered by Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the offences under Sections 8 and 9 of Act are different and separate. Assuming, Section 13(1)(d)(i) covers public servants who obtain for 'himself or for any other person' any valuable thing or pecuniary advantage by corrupt or illegal means, that would not mean that he would not fall within the scope of Sections 8 and 9. The ingredients are different. If a public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc. then he would fall in the net of Sections 8 and 9. In Section 13(1)(d) it is not necessary to prove that any valuable thing or pecuniary advantage has been obtained for inducing any public servant.