KALICHARAN MAHAPATRA

v.

STATE OF ORISSA

AUGUST 4, 1998

[M.M. PUNCHHI, CJ., AND K.T. THOMAS, JJ.]

Criminal Law :

Prevention

of Corruption Act, 1988: Sections 19, 13(2) and 13 (1)

(e). Public servant-Commission of offence by-Public servant ceased to

be so at the time of trial-Prosecution of-Held: Even if a public servant

ceased

to be so he is liable to be prosecuted under the Act-However, court

A

B

c

can take cognizance of offence even without sanction if he ceases to be a

public servant-Merely because previous sanction

is required for former D

· public servant, under S. 197 Cr. P. C. It does not mean that no prosecution

can be launched against a former public servant-Criminal Procedure

Code,

1973, s. 197.

The appellant was an

IPS Officer against whom a charge sheet under

Section 13 (2)

read with Section 13 (1) (e) of Prevention of Corruption E

Act, 1988 was registered after he retired from service. The appellant raised

an objection that he was not liable to be tried under the Act since he was

no more a public

servant 1'he Special Court overruled appellant's objection.

The High Court dismissed the petition filed by the appellant. Hence this

appeal F On behalf of the appellant it was contended that under Section 197 of

the Criminal Procedure Code, 1973 sanction for prosecution was mandatory

for a former public servant

and since the words

"former public servant" do

not occur in any

of the provisions of the Act it followed that no prosecution

could be launched against the appellant who was a former public servant.

G

Dismissing the appeal, this Court

HELD : 1.1. A public servant who committed an offence mentioned in

the Prevention of Corruption of Act, 1988, while he was a public servant, can

be prosecuted with the sanction contemplated in Section

19 of the Act if he H

961

962 SUPREME COURT REPORTS (1998] 3 S.C.R.

A continues to be 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 a public servant,

is

liable to be prosecuted whether he continues in office or not at the time of

B trial or during the pendency of the prosecution. (967-E-F(

1.2. There

is no indication anywhere in the provisions of the Act 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 offence in order to make him

C 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 demitting his office and thus

avert any proceedings 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

D till the date of superannuation. (964-E-F)

E

2. In

Section 197 of the Criminal Procedure Code, 1973 the necessity

for previous sanction

of made applicable to former public servants also by

using the words

"when any person who is or was a public servant". In spite

of bringing such a significant change to Section 197 of the Code in 1973,

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

F 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. [967-C-D]

G

R. Balakrishna Pillai v. State of Kera/a, (1996) 1 SCC 478, relied on.

S.A. Venkataraman v. State, (1958) SCR 1040; C.R. Bansi v. State of

Maharashtra, (1971]3 SCR 236; State of West Bengal v. Manmal Bhutoria,

[1977)3 SCR 758 and K. Veeraswami v. Union of India, (1991)3 SCC 655,

H referred to.

KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 963

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A

770 of 1998.

From the Judgment and Order dated 19.9.94 of the Orissa High Court

in Crl.M.No.2044of1993.

Vinoo Bhagat for the Appellant.

Jayant Dass and Raj Kumar Mehta for the Respondent.

The Judgment

of the Court was delivered by THOMAS. J. Leave granted.

Appellant was an !PS Officer who reached upto the level of

Superintendent of Police in the State Police Service, Orissa. Based on some

sleuth informations 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

B

c

was registered against him under section 13(2) of the Prevention of Corruption D

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.

The case was since transferred to the Court of Special Judge, E

Bhubaneswar which was established under the provisions of Orissa Special

Courts Act 1990. Appellant made a multi-pronged move against the prosecution.

At the first instance he challenged the very constitution

of

Special Court and

then he raised a preliminary objection that he is not liable to

be tried under

the Act since he was no more a public servant. His challenge against the

constitution

of the

Special Court did not succeed in spite of that contention F

having been taken up to this Court in SLP (C) No. 13776/93 which was

dismissed by this Court. But he persisted with his preliminary objection which

was over-ruled by the Special Court. He then moved the High Court under

Section 482 of the code of Criminal Procedure (For short 'the Code') to have

the prosecution proceedings quashed on that ground

Lut the High Court G

dismissed the petition as per the impugned order.

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 H

964 SUPREME COURT REPORTS [1998] 3 S.C.R.

A 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 inferred with reasonable precision that no prosecution

B can 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.

"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 IIJ of the Act

which contains provisions for offences and penalties does not point to any

C person who became a non-public servant, according to the counsel.

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

D servants. Section 7 of the Act contemplates offence committed by a person

who expects

to be public servant.

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

E 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

F

G

H

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.

Learned counsel for the appellant invited our attention to

Section 19(1)

of the Act which reads thus:

"19. Previous sanction necessary for prosecution.-(I) No Court shall

take cognizance

of an offence punishable under sections 7, I

0, 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

-f

KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 965

the affairs of the Union and is not removable from his office save by A

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."

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

B

no prosecution can lie for any offence under this Act. A person who ceased

C

to be public servant cannot be removed form any office, and hence it is

contended that he cannot be prosecuted for any offence under the Act.

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 D 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 ins. 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 E

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 els. (a) F

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 G

refer to a public servant having regard to the first paragraph of the

sub-section.

Clauses (a) and (b), therefore, would cover the case of

a public 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 H

A

966 SUPREME COURT REPORTS (1998] 3 S.C.R.

competent authority could remove from his office. The more important

words

i.n 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

B Bengal etc. v. Manma/ Bhutoria & Ors. etc., [1977] 3 SCR 758. The constitution

Bench

in K. Veeraswami v.

Union of India and Ors., [1991] 3 SCC 655, upheld

the view that no sanction

is required to prosecute a public servant after

retirement.

Learned counsel, however, contended that the legal position must be

C 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

D 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

E

F

G

H

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.

In R. Balakrishna

Pillai v. State of Kera/a and anr., [1996] 1SCC478,

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

KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 967

lead to needless or vexatious prosecutions.

It should be left to the A

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 'was' came to be employed

after the expression

'is' to make the sanction applicable even in cases where B

a retired public servant is sought to be

prosecuted.".

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 C

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 D

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, I 988 without any change in spite of the change made in

section

197 of the Code.

The result

of the above discussion is thus: A public servant who E

committed an offence mentioned in the Act, while he was a public servant,

can be prosecuted with the sanction contemplated in Section

19 of the Act

if he continues to be 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 F

public servant who committed the offence while he was a 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.

The Special court and the High Court have, therefore, rightly repelled

the preliminary objections

of the appellant. Accordingly we dismiss this G

~~· .

v.s.s. Appeal dismissed.