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PETITIONER:

HABIBULLA KHAN

Vs.

RESPONDENT:

STATE OF ORISSA & ANR.

DATE OF JUDGMENT02/02/1995

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

RAY, G.N. (J)

CITATION:

1995 AIR 1123 1995 SCC (2) 437

JT 1995 (2) 1 1995 SCALE (1)419

ACT:

HEADNOTE:

JUDGMENT:

1. Leave granted.

2. A common question of law, viz., whether sanction is

required for launching a criminal prosecution against the

appellants, has been raised in these appeals.

3.The Orissa Special Courts Act,1990 [hereinafter referred

to as the "Special Courts Act"] which came into force on

27th July, 1992 after receiving the assent of the President,

provides for constitution of special courts for the speedy

trial of certain classes of offences and for the

confiscation of the property involved in such offences.

Section 2 [d] of that Act defines "offence" to mean an

offence of criminal misconduct within the meaning of clause

(e) of sub-section [1] of Section 13 of the Prevention of

Corruption Act, 1988 [hereinafter referred to as the "Act"].

Section 5 [1] of the Special Courts Act, as amended by the

Amendment of 1993 reads as follows:

"5 [1]. If the State Government is of the

opinion that there is prima facie evidence of

the commission of an offence alleged to have

been combined by a person who held high public

or political office in the State of Orissa,

the State Government shall make a declaration

to that effect in every case in which it is of

the aforesaid opinion".

4. Rule 2 (1) [f] (i) of the Orissa Special Courts Rules

[hereinafter referred to as the "Rules"] reads as follows:

"2 (1} [f]. "Person holding high political

office" includes-

(i) members of the Council of Ministers and

the Chief Minister".

5.Clause [e] of sub-section [1] of Section 13 of the Act

defines "offence of criminal misconduct" as follows:

"13. Criminal misconduct by a public servant.

- [1] A public servant is said to

commit the offence of criminal misconduct -

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x x x x x x

(e) if he or any person on his behalf, is.

in possession or has, at any time during

the period of his office, been in possession

for which the public servant cannot

satisfactorily account, of pecuniary resources

or property disproportionate to his known

sources of income.

Explanation. - For the purposes of this

section, "known sources of income" means

income received from any lawful source and

such receipt has been intimated in accordance

with the provisions of any law, rules or

orders for the time being applicable to a

public servant.

6. It is not disputed that all the appellants were

Ministers in the Council of Ministers of the respondent-

State of Orissa during the period in which they were alleged

to have been found in possession of pecuniary resources or

property disproportionate to their known sources of income.

Subsequently, they ceased to be Ministers due to the change

of Government and thereafter were elected as the Members of

the Legislative Assembly of the State ["MLA" for short].

They continued to be such Members till the prosecutions were

launched against them for the said criminal misconduct under

Section 13 [1] (e) of the Act.

7. Shri Habibulla Khan, the appellant in the appeal

arising out of SLP No. 1563 of 1993 filed an application

before the Special Court on 25th July, 1991 for recalling

the orders of the cognisance of the offence on the ground

that at the time of taking the cognisance, he was an MLA and

as such a public servant within the meaning of Section 2 [c]

(viii) of the Act and, therefore, he could not be tried for

the offence under Section 13 [1] (e) of the Act without the

sanction of the Governor of the State under Section 19 of

the Act who according to him was competent to remove an MLA

under Article 192 of the Constitution. On 18th January,

1991, the Special Court dismissed the application holding

that an MLA was not a public servant and further the

Governor was not competent to remove an MLA and hence no

sanction was required under the said provision. This order

was assailed by the appellant before the High Court under

Section 482 of the Code of Criminal Procedure on 22nd

January, 1993. The learned Single Judge of the High Court

referred the matter to Division Bench which dismissed the

matter by its impugned judgment of 5th May, 1993 holding

that an MLA is a public servant within the meaning of

Section 2 [c] (viii) of the Act; but the power of "removal"

mentioned in Section 19 of the Act partakes the character of

punishment and the Governor has no power of removal of an WA

under Article 192 of the Constitution by way of punishment.

There was a distinction between the concept of "removal" as

used in Section 19 of the Act and that of "disqualification"

as used in Article 192 of the Constitution. Since the

Governor was not the authority to remove an &MA, the

sanction was not necessary under Section 19 of the Act.

8. The appellant, Nagarjuna Pradhan in appeal arising out

of SLP No.2261 of 1994 raised similar plea on 17th August,

1993 but a long time after the prosecution was launched

against him and 31 prosecution witnesses were examined.

9. Similarly, the appellant, Rama

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Chandra Ulaka in appeals arising out of to SLP Nos.2259-60

of 1994 raised the same plea belatedly in the two

prosecutions launched against him after 16 and 18 pros-

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ecution witnesses respectively were examined in those cases.

10. The appellants are being prosecuted for the criminal

misconduct which they are alleged to have committed during

the period they were holding high political office within

the meaning of Section 5 [1] of the Special Courts Act read

with Rule 2 (1) [f] (1) of the Rules made under that Act.

The Special Courts Act incorporates the definition of

"criminal misconduct" given in section 13 [1] (e) of the

Act. The procedure for prosecution to be followed, however,

is as laid down under the Special Courts Act. All that the

Special Courts Act requires for launching a criminal pros-

ecution against a person holding high political office is

that the State Government should make a declaration under

Section 5 [1] of that Act that there is prima facie evidence

of the commission of an offence by a person who held high

public or political office in the State. Hence the provi-

sions of Section 19 of the Act do not come into the picture

in the present case. That being so, no sanction of the

Governor or any other authority is necessary for launching

the criminal prosecutions in question.

11. Assuming, however, that the procedure to be followed

before launching criminal prosecution is that under the Act,

the admitted facts are that the appellants are being

prosecuted for the misconduct alleged to have been committed

by them during their tenure as the Members of the Council of

Ministers and not in their capacity as the MLAs. Hence the

provisions of Section 19 of the Act are inapplicable to the

facts of the present case as held in R.S. Nayak v. A.R.

Antulay [(1984) 2 SCR 495].

12. The second question is whether the appellants could be

prosecuted for the offence which they are alleged to have

committed during their tenure as ministers after they ceased

to be the ministers. This question has also been answered

by two decisions of this Court. In S.A. Venkataraman v. The

State [(1958) SCR 1040], it is held while construing similar

provision of Section 6 of the predecessor of the present Act

which provision was similar to the provisions of Section 19

of the present Act that no sanction was necessary for the

prosecution of the appellant in that case, as he was not a

public servant at the time of the taking of cognizance of

the offence. The Court there observed as follows:

"In construing the provisions of a statute it

is essential for a Court, in the first in-

stance, to give effect to the natural meaning

of the words used therein, if those words are

clear enough. It is only in the case of any

ambiguity that a Court is entitled to

ascertain the intention of the legislature.

Where a general power to take cognizance of an

offence is vested in a Court, any prohibition

to the exercise of that power, by any

provision of law, must be confined to the

terms of the prohibition. The words in S.6

(1) of the Act are clear enough and must be

given effect to. The more important words 'in

cl. (c) of s. 6 (1) are "of the authority

competent to remove him from his office". A

public servant who has ceased to be a public

servant is not a person removable from any

office by competent authority. The conclusion

is inevitable that at the time a Court is

asked to take cognizance not only must the

offence have

been committed by a public servant but the

person accused must still be a public servant

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removable from his office by a competent

authority before the provisions of s.6 can

apply."

13.Similarly, a Constitution Bench in Veeraswami v. Union of

India and others [(1991) 3 SCC 655], while construing the

provisions of the same Section 6 of the Prevention of

Corruption Act, 1947 held that no sanction under Section 6

of that Act was necessary for prosecution of the appellant

in that case since he had retired from service on attaining

the age of superannuation and was not a public servant on

the date of filing the charge sheet.

14.However, it was contended that while the Governor had

given sanction to prosecute the Chief Minister when he con-

tinued to be an MLA in the case of R.S. Nayak v. A.R.Antulay

[supra], the question whether the sanction was necessary to

prosecute an MLA as a public servant did not arise. It,

was, therefore, contended that although the offence alleged

to have been committed was during the appellants' tenure as

ministers, the appellants continued to be MLAs and,

therefore, as public servants on the day of the launching of

prosecution and hence sanction of the Governor under Article

192 of the Constitution was necessary. This question has

also been answered in R.S. Nayak v. A.R. Antulay [supra].

Referring to this Court's decision in The State of (S.P.E.

Hyderabad) v. Air Commodore Kailash Chand [(1980) 2 SCR

697], this Court held as follows:

"......... We would however, like to make it

abundantly clear that if the two decisions

purport -to lay down that even if a public

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 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

cogaizance of the offence alleged to have been

committed by the public servant while 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 Sec.6

Therefore, upon a true construction of Sec. 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 a prosecution is intended to be

launched against him."

15. Assuming therefore, that the MLA is a public servant

within the meaning of Section 2 (c) (viii) of the Act, in

view of the aforesaid proposition of law laid down in R.S.

Nayak v. A.R. Antulay [supra], this contention also does not

merit any consideration.

16.In view of the above, the appeals are dismissed.

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