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CASE NO.:

Appeal (civil) 5636 of 2006

PETITIONER:

Parkash Singh Badal and Anr

RESPONDENT:

State of Punjab and Ors

DATE OF JUDGMENT: 06/12/2006

BENCH:

Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

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 stand of the appellant in each case that the

proceedings were initiated on the basis of complaints which

were lodged mala fide and as an act of political vendetta. It is

stated that allegations are vague, lack in details and even if

accepted at the face value, did not show the commission of

any offence. It is stated that though the High Court primarily

relied on a Constitution Bench decision of this Court in R.S.

Nayak v A.R. Antulay (1984 (2) SCC 183), the said decision

was rendered in the context of the Prevention of Corruption

Act, 1947 (in short the 'Old Act'). It is submitted that the

provisions contained in Section 6 thereof are in pari materia to

Section 19 of the Act so far as relevant for the purpose of this

case; the effect of Section 6(2) of the Old Act (corresponding to

Section 19(2) of the Act) was lost sight of. The decision in the

said case was to the effect that if an accused is a public

servant who has ceased to be a public servant and/or is a

public servant of different category then no sanction in terms

of Section 19(1) of the Act corresponding to Section 6(1) of the

Old Act is necessary.

So far as the factual scenario of these cases is concerned

appellant Sri Parkash Singh Badal was at the relevant point of

time the Chief Minister of the State of Punjab, Smt. Surinder

Kaur is his wife and Shri Sukhbir Singh is his son. Smt.

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Surinder Kaur and Shri Sukhbir Singh Badal allegedly

committed offences punishable under Sections 8 and 9 of the

Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan

Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers

during the concerned period and were at the time of taking

cognizance members of Legislative Assembly. Shri Sukhbir

Singh Badal was a member of the Parliament. As noted above,

primary stand is that the effect of Section 6(2) of the Old Act

corresponding to Section 19 (2) of the Act was not considered

and in that view of the matter the judgment in Antulay's case

(supra) is to be considered per incuriam. Additionally, it is

submitted that the voluminous charge sheets filed are

extremely vague and do not indicate commission of any

definite offence. Some allegations of general nature have been

made. The decision in P.V. Narasimha Rao v. State (1998 (4)

SCC 626) specifically dissented from the view regarding

vertical hierarchy which appears to be the foundation for the

conclusion that the authority competent to remove the

accused from office alone could give sanction. It is submitted

that the offences alleged to have been committed under IPC

had close nexus with the workmen who are on official duty

and therefore sanction under Section 197 of the Code is

mandatory. With reference to several judgments of this Court

it is submitted that even offences punishable under Sections

468, 471 and 120B have been in certain cases held to be

relatable to the official duty thereby mandating sanction in

terms of Section 197 of the Code.

It is pointed out that the mala fide intention is clear as all

these cases were registered at Mohali Police Station which was

declared to be the police station for the purpose of

investigation of the concerned cases and new Court was

established for the trial of the concerned cases and

jurisdiction was conferred on one officer without following the

process of consultation with the High Court. These are

indicative of the fact that action was taken with mala fide

intention only to harass the accused persons as noted above.

Learned counsel for the respondents on the other hand

submitted that the decision in R.S. Nayak's case (supra)

correctly lays down the position. Several attempts were made

in the past to distinguish said case and to propound that the

said decision did not indicate the correct position in law. The

allegations of mala fide are clearly unfounded. No new court

was established and in fact Special Judge of Special Court

who was appointed to have consultation with the High Court

was only designated to hear the cases. In fact for the sake of

convenience these cases having link with each other can be

disposed of early if they are taken up together by one Court.

In essence, it is submitted that the decision in R.S.

Nayak's case (supra) is not per incuriam as contended. Under

Section 19(1) of the Act previous sanction is prescribed for a

public servant if (a) he is a public servant at the time of taking

cognizance of the offence and (b) the accused continues to

hold office alleged to have been mis-used at the time of taking

cognizance of the offence by the Court. This is the view

expressed in R. S. Nayak's case (supra).

Section 6 of the Old Act and Section 19 of the Act read as

follows:

"6. Power to try summarily.\027(1) Where a

special Judge tries any offence specified in

sub-section (1) of section 3, alleged to have

been committed by a public servant in relation

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to the contravention of any special order

referred to in sub-section (1) of section l2 A of

the Essential Commodities Act, 1955 (10 of

1955) or of an order referred to in clause (a) of

sub-section (2) of that section, then,

notwithstanding anything contained in sub-

section (1) of section 5 of this Act or section

260 of the Code of Criminal Procedure, 1973 (2

of 1974), the special Judge shall try the offence

in a summary way, and the provisions of

sections 262 to 265 (both inclusive) of the said

Code shall, as far as may be, apply to such

trial:

Provided that, in the case of any

conviction in a summary trial under this

section, it shall be lawful for the special Judge

to pass a sentence of imprisonment for a term

not exceeding one year:

Provided further that when at the

commencement of, or in the course of, a

summary trial under this section, it appears to

the special Judge that the nature of the case is

such that a sentence of imprisonment for a

term exceeding one year may have to be

passed or that it is, for any other reason,

undesirable to try the case summarily, the

special Judge shall, after hearing the parties,

record an order to that effect and thereafter

recall any witnesses who may have been

examined and proceed to hear or re-hear the

ease in accordance with the procedure

prescribed by the said Code for the trial of

warrant cases by Magistrates.

(2) Notwithstanding anything to the contrary

contained in this Act or in the Code of

Criminal Procedure, 1973 (2 of 1974), there

shall he no appeal by a convicted person in

any case tried summarily under this section in

which the special Judge passes a sentence of

imprisonment not exceeding one month, and of

fine not exceeding two thousand rupees

whether or not any order under section 452 of

the said Code is made in addition to such

sentence, but an appeal shall lie where any

sentence in excess of the aforesaid limits is

passed by a special Judge.

19. Previous sanction necessary for

prosecution.\027(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,\027

(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

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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 (2 of

1974),\027

(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 or 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 any

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.\027For the purposes of this

section,\027

(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.

IPC provided for offences by or relating to public servants

under Chapter IX including Sections 161 to 165A. The Old

Act was enacted on 12.3.1947, with the object of making

provisions for the prevention of bribery and corruption more

effective. In 1952 a Committee headed by Dr. Bakshi Tek

Chand was constituted. The said Committee examined the

true intent and purpose of Section 6 of the Old Act. It was

inter alia noted by the Committee as follows:

"Section 6 of the Act prescribes that no

prosecution under Section 5(2) is to be

instituted without the previous sanction of the

authority competent to remove the accused

officer from his office. The exact implications of

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this provisions have on occasions given rise to

a certain amount of difficulty. There have been

cases where an offence has been disclosed

after the officer concerned has ceased to hold

office, e.g., by retirement. In such cases it is

not entirely clear whether any sanction is at all

necessary. Another aspect of the same problem

is presented by the type of case which, we are

told, is fairly common-where an officer is

transferred from one jurisdiction to another or

an officer who is lent to another Department,

commits an offence while serving in his

temporary office and then returns to his parent

Department before the offence is brought to

light. In a case of this nature doubts have

arisen as to the identity of the authority from

whom sanction for prosecution is to be sought.

In our opinion there should be an

unambiguous provision in the law under

which the appropriate authority for according

sanction is to be determined on the basis of

competence to remove the accused public

servant from office at the time when the

offence is alleged to have been committed."

The Law Commission of India in its 41st Report

recommended amendment to Section 197 of the Code

suggesting to grant protection of previous sanction to a public

servant who is or was a public servant at the time of

cognizance. Following the report of the Law Commission of

India, Section 197 of the Code was amended in 1969. The Act

was enacted on 9.9.1988 and the Statement of Objects and

Reasons indicated widening of the scope of the definition of

"public servant" and the incorporation of offences already

covered under Sections 161 to 165A of the IPC in the Act. New

Section 19 as was enacted virtually the same as section 6 of

the Old Act. Earlier to R.S. Nayak's case (supra) this Court

had occasion to deal with the issues in S. A. Venkataraman v.

State (AIR1958 SC 107). In para 14 it was stated as follows:

"14\005..There is nothing in the words used in

Section 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\005..A public

servant who has ceased to be a public servant

is not a person removable from any office by a

competent authority\005.."

Following the decision rendered in Venkataraman's case

(supra) and C.R. Bansi v. State of Maharashtra (1970(3) SCC

537) the High Court accepted the view of learned trial Judge

and declined relief as noted above.

The use of the expression "is" in Section 19 of the Act vis-

`-vis the expression "is" or "was" is indicative of the legislative

intent. Though certain changes were made in the Code no

corresponding change was made in the Act.

Mr. P.P. Rao, learned senior counsel for the appellants in

connected case contended that this was a case of casus

omissus. The discussions indicate that the reports of Dr.

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Bakshi Tek Chand and of the Law Commission of India were to

be accepted so far as they relate to covering the ex public

servants. This plea shall be dealt with in the cases separately.

In reply, learned counsel for the respondents submitted

that much before R.S. Nayak's case (supra) this Court in C.R.

Bansi's case (supra) held as follows:

"9\005..But if a person ceases to be a public

servant the question of harassment does not

arise. The fact that an appeal is pending does

not make him a public servant. The appellant

ceased to be a public servant when the order of

dismissal was passed. There is no force in the

contention of the learned counsel and the trial

cannot be held to be bad for lack of sanction

under Section 6 of the Act."

It is their stand that where the public servant has ceased

to be a public servant in one capacity by ceasing to hold office

which is alleged to have been misused, the fortuitous

circumstance of the accused being in another capacity holding

an entirely different public office is irrelevant. It was

categorically held in R. S. Nayak's case (supra) in para 13 that

"on analysis of the policy of the whole section the authority

competent to remove the public servant from the office alleged

to have mis-used is alone the competent sanctioning

authority."

In that case, it was inter alia, held as follows:

"13. Section 5 of the 1947 Act defines the

offence of criminal misconduct and a public

servant who commits an offence of criminal

misconduct is liable to be punished with

imprisonment for a term which shall not be

less than one year but which may extend to

seven years and shall also be liable to fine.

Section 6 provides for a sanction as a pre-

condition for a valid prosecution for offences

punishable under Sections 161, 164, 165 IPC

and Section 5 of the 1947 Act. It reads as

under:

6. (1) No court shall take cognizance of an

offence punishable under Section 161 or

Section 165 of the Indian Penal Code, or under

sub-section (2) of Section 5 of this Act, 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 affairs of the Union and is not

removable from his office save by or with the

sanction of the Central 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,

(c) in the case of any other person, of the

authority competent to remove him from his

office.

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(2) Where for any reason whatsoever any doubt

arises whether the previous sanction as

required under sub-section (1) should be given

by the Central or 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.

Xx xx xx xx

19. Section 6 bars the court from taking

cognizance of the offences therein enumerated

alleged to have been committed by a public

servant except with the previous sanction of

the competent authority empowered to grant

the requisite sanction. Section 8 of 1952 Act

prescribes procedure and powers of Special

Judge empowered to try offences set out in

Section 6 of I 947 Act. Construction of Section

8 has been a subject to vigorous debate in the

cognate appeal. In this appeal we will proceed

on the assumption that a Special Judge Can

take cognizance of offences he is competent to

try on a private complaint. Section 6 creates a

bar to the court from taking cognizance of

offences therein enumerated except with the

previous sanction of the authority set out in

clauses (a),(b) and (c) of sub-section (1). The

object underlying such provision was to save

the public servant from the harassment of

frivolous or unsubstantiated allegations. The

policy underlying Section 6 and similar

sections, is that there should not be

unnecessary harassment of public servant.

(See C.R. Bansi V. State of Maharashtra (1971

(3) SCR 236). Existence thus of a valid

sanction is a prerequisite to the taking of

cognizance of the enumerated offences alleged

to have been committed by a public servant.

The bar is to the taking of cognizance of

offence by the court. Therefore, when the court

is called upon to take cognizance of such

offences, it must enquire whether there is a

valid sanction to prosecute the public servant

for the offence alleged to have been committed

by him as public servant. Undoubtedly, the

accused must be a public servant when he is

alleged to have committed the offence of which

he is accused because Sections 161, 164, 165

IPC and Section 5(2) of the 1947 Act clearly

spell out that the offences therein defined can

be committed by a public servant. If it is

contemplated to prosecute public servant who

has committed such offences, when the court

is called upon to take cognizance of the

offence, a sanction ought to be available

otherwise the court would have no jurisdiction

to take cognizance of the offence. A trial

without a valid sanction where one is

necessary under Section 6 has been held to be

a trial without jurisdiction by the court. (See

R.R. Chari v. State of U.P.(1963) 1 SCR 121)

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and S.N. Bose v. State of Bihar ( 1968 (3) SCR

563) In Mohd. Iqbal Ahmad v. State of A P.(

1979(2) SCR 1007) it was held that a trial

without a sanction renders the proceedings ab

initio void. But the terminus a quo for a valid

sanction is the time when the court is called

upon to take cognizance of the offence. If

therefore, when the offence is alleged to have

been committed, the accused was a public

servant but by the time the court is called

upon to take cognizance of the offence

committed by him as public servant, he has

ceased to be a public servant, no sanction

would he necessary for taking cognizance of

the offence against him. This approach is in

accord with the policy underlying Section 6 in

that a public servant is not to be exposed to

harassment of a frivolous or speculative

prosecution. If he has ceased to be a public

servant in the meantime, this vital

consideration ceases to exist. As a necessary

corollary, if the accused has ceased to be a

public servant at the time when the court is

called upon to take cognizance of the offence

alleged to have been committed by him as

public servant, Section 6 is not attracted. This

aspect is no more res integra. In S.A.

Venkataraman v. State (1958 SCR 1040) this

Court held as under:

In our opinion, in giving effect to the

ordinary meaning of the words used

in Section 6 of the Act, the

conclusion is inevitable that at the

time a court is asked to take

cognizance not only the offence

must have been committed by a

public servant but the person

accused is still a public servant

removable from his office by a

competent authority before the

provisions of Section 6 can apply. In

the present appeals, admittedly, the

appellants had ceased to be public

servants at the time the court took

cognizance of the offences alleged to

have been committed by them as

public servants. Accordingly, the

provisions of Section 6 of the Act did

not apply and the prosecution

against them was not vitiated by the

lack of a previous sanction by a

competent authority.

And this view has been consistently followed in

C.R. Bansi case and K.S. Dharmadatan v.

Central Government (1979 (3) SCR 832). It

therefore appears well settled that the relevant

date with reference to which a valid sanction is

sine qua non for taking cognizance of an

offence committed by a public servant as

required by Section 6 is the date on which the

court is called upon to take cognizance of the

offence of which he is accused.

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(underlined for emphasis)

Xx xx xx

23. Offences prescribed in Sections 161, 164

and 165 IPC and Section 5 of the 1947 Act

have an intimate and inseparable relation with

the office of a public servant. A public servant

occupies office which renders him a public

servant and occupying the office carries with it

the powers conferred on the office. Power

generally is not conferred on an individual

person. In a society governed by rule of law

power is conferred on office or acquired by

statutory status and the individual occupying

the office or on whom status is conferred

enjoys the power of office or power flowing

from the status. The holder of the office alone

would have opportunity to abuse or misuse the

office. These sections codify a well-recognised

truism that power has the tendency to corrupt.

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

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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

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whom sanction is sought from the office.

24. Now if the public servant holds two offices

and he is accused of having abused one

and from which he is removed but

continues to hold the other which is

neither alleged to have been used nor

abused, is a sanction of the authority

competent to remove him from the office

which is neither alleged or shown to have

been abused or misused necessary? The

submission is that if the harassment of

the public servant by a frivolous

prosecution and criminal waste of his time

in law courts keeping him away from

discharging public duty, are the objects

underlying Section 6, the same would be

defeated if it is held that the sanction of

the latter authority is not necessary. The

submission does not commend to use. We

fail to see how the competent authority

entitled to remove the public servant from

an office which is neither alleged to have

been used or abused would be able to

decide whether the prosecution is

frivolous or tendentious. An illustration

was posed to the learned Counsel that a

Minister who is indisputably a public

servant greased his palms by abusing his

office as Minister, and then ceased to hold

the office before the court was called upon

to take cognizance of the offence against

him and therefore, sanction as

contemplated by Section 6 would not be

necessary; but if after committing the

offence and before the date of taking of

cognizance of the offence, he was elected

as a Municipal President in which

capacity he was a public servant under

the relevant Municipal law, and was

holding that office on the date on which

court proceeded to take cognizance of the

offence committed by him as a Minister,

would a sanction be necessary and that

too of that authority competent to remove

him from the office of the Municipal

President. The answer was- in affirmative.

But the very illustration would show that

such cannot be the law. Such an

interpretation of Section 6 would render it

as a shield to an unscrupulous public

servant. Someone interested in protecting

may shift him from one office of public

servant to another and thereby defeat the

process of law. Ode can legitimately

envisage a situation wherein a person may

hold a dozen different offices, each one

clothing him with the status of a public

servant under Section 21 IPC and even if

he has abused only one office for which

either there is a valid sanction to

prosecute him or he has ceased to hold

that office by the time court was called

upon to take cognizance, yet on this

assumption, sanction of 11 different

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competent authorities each of which was

entitled to remove him from 11 different

public offices would be necessary before

the court can take cognizance of the

offence committed by such public

servant/while abusing one office which he

may have ceased to hold. Such an

interpretation in contrary to all canons of

construction and leads to an absurd and

product which of necessity must be

avoided. Legislation must at all costs be

interpreted in such a way that it would

not operate as a rougue's charter. (See

Davis & Sons Ltd. v. Atkins [1977]

Imperial Court Reports, 662)

xx xx xx

26. Therefore upon a true construction of

Section 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".

Para 18 of the said judgment is also of considerable

importance. It reads as follows:

"18. Re. (a) The 1947 Act was enacted, as its

long title shows, to make more effective

provision for the prevention of bribery and

corruption. Indisputably, therefore, the

provisions of the Act must receive such

construction at the hands of the court as

would advance the object and purpose

underlying the Act and at any rate not defeat

it. If the words of the statute are clear and

unambiguous, it is the plainest duty of the

court to give effect to the natural meaning of

the words used in the provision. The question

of construction arises only in the event of an

ambiguity or the plain meaning of the words

used in the statute would be self-defeating.

The court is entitled to ascertain the intention

of the legislature to remove the ambiguity by

construing the provision of the statute as a

whole keeping in view what was the mischief

when the statute was enacted and to remove

which the legislature enacted the statute. This

rule of construction is so universally accepted

that it need not be supported by precedents.

Adopting this rule of construction, whenever a

question of construction arises upon ambiguity

or where two views are possible of a provision,

it would be the duty of the court to adopt that

construction which would advance the object

underlying the Act, namely, to make effective

provision for the prevention of bribery and

corruption and at any rate not defeat it."

As is clear from a bare reading of the paragraph, this

Court adopted a construction which is based on the avoidance

of mischief rule. That being so, the plea that the effect of

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Section 6(2) of the Old Act was not kept in view does not merit

acceptance. Though a mere reference to a provision in all

cases may not in all cases imply consciousness as to the effect

of that provision the case at hand does not fall to that

category. In this case not only was there reference to that

provision, but also this Court adopted a construction which

kept in view the object of the statute and the need for

interpretation in a particular way. Foundation for the

interpretation is found in para 24 of the judgment. With

reference to Davis & Sons Ltd. v. Atkins (1977 Imperial Court

Report 662) it was held that legislation must at all costs be

interpreted in such a way that it would not operate as a

rogue's charter.

In Habibulla Khan v. State of Orissa and Anr. (1995 (2)

SCC 437) it was held was as follows:

"12. However, it was contended that while the

Governor had given sanction to prosecute the

Chief Minister when he continued to be an

MLA in the case of R.S. Nayak v. A.R. Antulay,

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.

Referring to this Court's decision in State

(S.P.E., Hyderabad) v. Air Commodore Kailash

Chand this Court held : (SCC pp. 208-09,

paras 25-26):

"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 cognizance

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 Section 6.

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Therefore, upon a true

construction of Section 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."

The principle of immunity protects all acts which the

public servant has to perform in the exercise of the functions

of the Government. The purpose for which they are performed

protects these acts from criminal prosecution. However, there

is an exception. Where a criminal act is performed under the

colour of authority but which in reality is for the public

servant's own pleasure or benefit then such acts shall not be

protected under the doctrine of State immunity.

In other words, where the act performed under the colour

of office is for the benefit of the officer or for his own pleasure

Section 19(1) will come in. Therefore, Section 19(1) is time and

offence related.

This Court in Shreekantiah Ramayya Munipalli v. The

State of Bombay reported in (1955 (1) SCR 1177 at

pages1186-1187) held as follows:

"We have therefore first to concentrate on the

word "offence".

Now an offence seldom consists of a

single act. It is usually composed of several

elements and, as a rule, a whole series of acts

must be proved before it can be established. In

the present case, the elements alleged against

the second accused are, first, that there was

an "entrustment" and/or "dominion"; second,

that the entrustment and/or dominion was "in

his capacity as a public servant"; third, that

there was a "disposal"; and fourth, that the

disposal was "dishonest". Now it is evident that

the entrustment and/or dominion here were in

an official capacity, and it is equally evident

that there could in this case be no disposal,

lawful or otherwise, save by an act done or

purporting to be done in an official capacity.

Therefore, the act complained of, namely the

disposal, could not have been done in any

other way. If it was innocent, it was an official

act; if dishonest, it was the dishonest doing of

an official act, but in either event the act was

official because the second accused could not

dispose of the goods save by the doing of an

official act, namely officially permitting their

disposal; and that he did. He actually

permitted their release and purported to do it

in an official capacity, and apart from the fact

that he did not pretend to act privately, there

was no other way in which he could have done

it. Therefore, whatever the intention or motive

behind the act may have been, the physical

part of it remained unaltered, so if it was

official in the one case it was equally official in

the other, and the only difference would lie in

the intention with which it was done : in the

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one event, it would be done in the discharge of

an official duty and in the other, in the

purported discharge of it.

The act of abetment alleged against him

stands on the same footing, for his part in the

abetment was to permit the disposal of the

goods by the doing of an official act and thus

"wilfully suffer" another person to use them

dishonestly : section 405 of the Indian Penal

Code. In both cases, the "offence" in his case

would be incomplete without proving the

official act."

(underlined for emphasis)

The main contention advanced by Shri Venugopal

Learned senior counsel appearing for the appellant is that a

public servant who continues to remain so (on transfer) has

got to be protected as long as he continues to hold his office.

According to the learned counsel, even if the offending act is

committed by a public servant in his former capacity and even

if such a public servant has not abused his subsequent office

still such a public servant needs protection of Section 19(1) of

the Act. According to the learned counsel, the judgment of

this Court in R.S. Nayak's case (supra) holding that the

subsequent position of the public servant to be unprotected

was erroneous. According to the learned counsel, the public

servant needs protection all throughout as long as he

continues to be in the employment.

The plea is clearly untenable as Section 19(1) of the Act is

time and offence related.

Section 19(1) of the Act has been quoted above.

The underlying principle of Sections 7, 10, 11, 13 and 15

have been noted above. Each of the above Sections indicate

that the public servant taking gratification (S.7), obtaining

valuable thing without consideration (S.11), committing acts of

criminal misconduct (S.13) are acts performed under the

colour of authority but which in reality are for the public

servant's own pleasure or benefit. Sections 7, 10, 11, 13 and

15 apply to aforestated acts. Therefore, if a public servant in

his subsequent position is not accused of any such criminal

acts then there is no question of invoking the mischief rule.

Protection to public servants under Section 19(1)(a) has to be

confined to the time related criminal acts performed under the

colour or authority for public servant's own pleasure or benefit

as categorized under Sections 7, 10, 11, 13 and 15. This is the

principle behind the test propounded by this court, namely,

the test of abuse of office.

Further, in cases where offences under the Act are

concerned the effect of Section 19 dealing with question of

prejudice has also to be noted.

In Balakrishnan Ravi Menon v. Union of India (SLP (Crl.)

No.3960 of 2002 decided on 17.9.2002) a similar plea was

rejected. It was inter alia held as follows:

"Hence, it is difficult to accept the contention

raised by U.R. Lalit, the learned senior counsel

for the petitioner that the aforesaid finding

given by this Court in Antulay's case is obiter.

Further, under Section 19 of the PC Act,

sanction is to be given by the Government or

the authority which would have been

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competent to remove the public servant from

his office at the time when offence was alleged

to have been committed. The question of

obtaining sanction would arise in a case where

the offence has been committed by a public

servant who is holding the office and by

misusing or abusing the powers of the office,

he has committed the offence. The word 'office'

repeatedly used in Section 19 would mean the

'office' which the public servant misuses or

abuses by corrupt motive for which he is to be

prosecuted.

xx xx xx

Clauses (a) and (b) of sub-section (1)

specifically provide that in case of a person

who is employed and is not removable from his

office by the Central Government or the State

Government, as the case may be, sanction to

prosecute is required to be obtained either

from the Central Government or the State

Government. The emphasis is on the words

"who is employed" in connected with the affairs

of the Union or the State Government. If he is

not employed then Section 19 nowhere

provides for obtaining such sanction. Further,

under sub-section (2) the question of obtaining

sanction is relatable to the time of holding the

office when the offence was alleged to have

been committed. In case where the person is

not holding the said office as he might have

retired, superannuated, discharged or

dismissed then the question of removing would

not arise."

The effect of sub-sections (3) and (4) of Section 19 of the

Act are of considerable significance. In Sub-Section (3) the

stress is on "failure of justice" and that too "in the opinion of

the Court". In sub-section (4), the stress is on raising the plea

at the appropriate time. Significantly, the "failure of justice" is

relatable to error, omission or irregularity in the sanction.

Therefore, mere error, omission or irregularity in sanction is

considered fatal unless it has resulted in failure of justice or

has been occasioned thereby. Section 19(1) is a matter of

procedure and does not go to root of jurisdiction as observed

in para 95 of the Narasimha Rao's case (supra). Sub-section

(3)(c) of Section 19 reduces the rigour of prohibition. In Section

6(2) of the Old Act (Section 19(2) of the Act) question relates to

doubt about authority to grant sanction and not whether

sanction is necessary.

In Halsbury's Laws of England, 4th Edn., Vol.26 it is

stated:

"A decision is given per incuriam when the

court has acted in ignorance of a previous

decision of its own or of a court of coordinate

jurisdiction which covered the case before it, in

which case it must decide which case to follow;

or when it has acted in ignorance of a House of

Lords decision, in which case it must follow

that decision; or when the decision is given in

ignorance of the terms of a statute or rule

having statutory force."

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In Govt. of A.P. v. B. Satyanarayana Rao (2000 (4)

SCC 262) it has been held as follows:

""The rule of per incuriam can be applied

where a court omits to consider a binding

precedent of the same court or the superior

court rendered on the same issue or where a

court omits to consider any statute while

deciding that issue."

"Incuria" literally means "carelessness". In practice per

incuriam is taken to mean per ignoratium. English courts

have developed this principle in relaxation of the rule of stare

decisis. The "quotable in law" as held in Young v. Bristol

Aeroplane Co. Ltd. (1944 (2) All ER 293) is avoided and

ignored if it is rendered "in ignoratium of a statute or other

binding authority". Same has been accepted, approved and

adopted by this Court while interpreting Article 141 of the

Constitution which embodies the doctrine of precedents as a

matter of law. The above position was highlighted in State of

U.P. v. Synthetics and Chemicals Ltd. (1991 (4) SCC 139). To

perpetuate an error is no heroism. To rectify it is the

compulsion of the judicial conscience.

The above position was highlighted in Babu Parasu

Kaikadi (dead) by Lrs. v. Babu (dead) thr. Lrs. (2004 (1) SCC

681 and Sunita Devi v. State of Bihar and Anr. (2005 (1) SCC

608)

As regards applicability of Section 197 of the Code, the

position in law has been elaborately dealt with in several

cases.

In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr.

(AIR 1988 SC 257), this Court while emphasizing on the

balance between protection to the officers and the protection

to the citizens observed as follows:-

"It is necessary to protect the public

servants in the discharge of their duties. In

the facts and circumstances of each case

protection of public officers and public

servants functioning in discharge of official

duties and protection of private citizens have

to be balanced by finding out as to what

extent and how far is a public servant working

in discharge of his duties or purported

discharge of his duties, and whether the

public servant has exceeded his limit. It is

true that Section 196 states that no

cognizance can be taken and even after

cognizance having been taken if facts come to

light that the acts complained of were done in

the discharge of the official duties then the

trial may have to be stayed unless sanction is

obtained. But at the same time it has to be

emphasised that criminal trials should not be

stayed in all cases at the preliminary stage

because that will cause great damage to the

evidence."

The protection given under Section 197 is to protect

responsible public servants against the institution of possibly

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vexatious criminal proceedings for offences alleged to have

been committed by them while they are acting or purporting to

act as public servants. The policy of the legislature is to afford

adequate protection to public servants to ensure that they are

not prosecuted for anything done by them in the discharge of

their official duties without reasonable cause, and if sanction

is granted, to confer on the Government, if they choose to

exercise it, complete control of the prosecution. This

protection has certain limits and is available only when the

alleged act done by the public servant is reasonably connected

with the discharge of his official duty and is not merely a cloak

for doing the objectionable act. If in doing his official duty, he

acted in excess of his duty, but there is a reasonable

connection between the act and the performance of the official

duty, the excess will not be a sufficient ground to deprive the

public servant from the protection. The question is not as to

the nature of the offence such as whether the alleged offence

contained an element necessarily dependent upon the offender

being a public servant, but whether it was committed by a

public servant acting or purporting to act as such in the

discharge of his official capacity. Before Section 197 can be

invoked, it must be shown that the official concerned was

accused of an offence alleged to have been committed by him

while acting or purporting to act in the discharge of his official

duties. It is not the duty which requires examination so much

as the act, because the act can be performed both in the

discharge of the official duty as well as in dereliction of it. The

act must fall within the scope and range of the official duties of

the public servant concerned. It is the quality of the act which

is important and the protection of this section is available if

the act falls within the scope and range of his official duty.

There cannot be any universal rule to determine whether there

is a reasonable connection between the act done and the

official duty, nor is it possible to lay down any such rule. This

aspect makes it clear that the concept of Section 197 does not

immediately get attracted on institution of the complaint case.

At this juncture, we may refer to P. Arulswami v. State of

Madras (AIR 1967 SC 776), wherein this Court held as under:

"... It is not therefore every offence

committed by a public servant that requires

sanction for prosecution under Section 197(1)

of the Criminal Procedure Code; nor even

every act done by him while he is actually

engaged in the performance of his official

duties; but if the act complained of is directly

concerned with his official duties so that, if

questioned, it could be claimed to have been

done by virtue of the office, then sanction

would be necessary. It is quality of the act that

is important and if it falls within the scope

and range of his official duties the protection

contemplated by Section 197 of the Criminal

Procedure Code will be attracted. An offence

may be entirely unconnected with the official

duty as such or it may be committed within

the scope of the official duty. Where it is

unconnected with the official duty there can

be no protection. It is only when it is either

within the scope of the official duty or in

excess of it that the protection is claimable."

Section 197(1) and (2) of the Code reads as under:

"197. (1) When any person who is or was a

Judge or Magistrate or a public servant not

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removable from his office save by or with the

sanction of the Government 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, no Court shall

take cognizance of such offence except with

the previous sanction -

(a) in the case of person who is employed or,

as the case may be, was at the time of

commission of the alleged offence employed, in

connection with the affairs of the Union, of the

Central Government;

(b) in the case of a person who is employed or,

as the case may be, was at the time of

commission of the alleged offence employed, in

connection with the affairs of a State, of the

State Government.

* * *

(2) No Court shall take cognizance of any

offence alleged to have been committed by any

member of the Armed Forces of the Union

while acting or purporting to act in the

discharge of his official duty, except with the

previous sanction of the Central Government."

The section falls in the chapter dealing with conditions

requisite for initiation of proceedings. That is if the conditions

mentioned are not made out or are absent then no prosecution

can be set in motion. For instance no prosecution can be

initiated in a Court of Sessions under Section 193, as it

cannot take cognizance, as a court of original jurisdiction, of

any offence unless the case has been committed to it by a

Magistrate or the Code expressly provides for it. And the

jurisdiction of a Magistrate to take cognizance of any offence is

provided by Section 190 of the Code, either on receipt of a

complaint, or upon a police report or upon information

received from any person other than police officer, or upon his

knowledge that such offence has been committed. So far

public servants are concerned the cognizance of any offence,

by any court, is barred by Section 197 of the Code unless

sanction is obtained from the appropriate authority, if the

offence, alleged to have been committed, was in discharge of

the official duty. The section not only specifies the persons to

whom the protection is afforded but it also specifies the

conditions and circumstances in which it shall be available

and the effect in law if the conditions are satisfied. The

mandatory character of the protection afforded to a public

servant is brought out by the expression, 'no court shall take

cognizance of such offence except with the previous sanction'.

Use of the words, 'no' and 'shall' make it abundantly clear that

the bar on the exercise of power by the court to take

cognizance of any offence is absolute and complete. Very

cognizance is barred. That is the complaint, cannot be taken

notice of. According to Black's Law Dictionary the word

'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction'

or 'power to try and determine causes'. In common parlance it

means 'taking notice of'. A court, therefore, is precluded from

entertaining a complaint or taking notice of it or exercising

jurisdiction if it is in respect of a public servant who is

accused of an offence alleged to have committed during

discharge of his official duty.

Such being the nature of the provision the question is

how should the expression, 'any offence alleged to have been

committed by him while acting or purporting to act in the

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discharge of his official duty', be understood? What does it

mean? 'Official' according to dictionary, means pertaining to

an office, and official act or official duty means an act or duty

done by an officer in his official capacity. In B. Saha and Ors.

v. M. S. Kochar (1979 (4) SCC 177), it was held : (SCC pp.

184-85, para 17)

"The words 'any offence alleged to have been

committed by him while acting or purporting

to act in the discharge of his official duty'

employed in Section 197(1) of the Code, are

capable of a narrow as well as a wide

interpretation. If these words are construed

too narrowly, the section will be rendered

altogether sterile, for, 'it is no part of an

official duty to commit an offence, and never

can be'. In the wider sense, these words will

take under their umbrella every act

constituting an offence, committed in the

course of the same transaction in which the

official duty is performed or purports to be

performed. The right approach to the import of

these words lies between two extremes. While

on the one hand, it is not every offence

committed by a public servant while engaged

in the performance of his official duty, which

is entitled to the protection of Section 197 (1),

an act constituting an offence, directly and

reasonably connected with his official duty will

require sanction for prosecution under the

said provision."

Use of the expression, 'official duty' implies that the act or

omission must have been done by the public servant in the

course of his service and that it should have been in discharge

of his duty. The Section does not extend its protective cover to

every act or omission done by a public servant in service but

restricts its scope of operation to only those acts or omissions

which are done by a public servant in discharge of official

duty.

It has been widened further by extending protection to

even those acts or omissions which are done in purported

exercise of official duty. That is under the colour of office.

Official duty therefore implies that the act or omission must

have been done by the public servant in course of his service

and such act or omission must have been performed as part of

duty which further must have been official in nature. The

Section has, thus, to be construed strictly, while determining

its applicability to any act or omission in course of service. Its

operation has to be limited to those duties which are

discharged in course of duty. But once any act or omission

has been found to have been committed by a public servant in

discharge of his duty then it must be given liberal and wide

construction so far its official nature is concerned. For

instance a public servant is not entitled to indulge in criminal

activities. To that extent the Section has to be construed

narrowly and in a restricted manner. But once it is established

that act or omission was done by the public servant while

discharging his duty then the scope of its being official should

be construed so as to advance the objective of the Section in

favour of the public servant. Otherwise the entire purpose of

affording protection to a public servant without sanction shall

stand frustrated. For instance a police officer in discharge of

duty may have to use force which may be an offence for the

prosecution of which the sanction may be necessary. But if the

same officer commits an act in course of service but not in

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discharge of his duty and without any justification therefor

then the bar under Section 197 of the Code is not attracted. To

what extent an act or omission performed by a public servant

in discharge of his duty can be deemed to be official was

explained by this Court in Matajog Dobey v. H. C. Bhari (AIR

1956 SC 44) thus:

"The offence alleged to have been committed

(by the accused) must have something to do,

or must be related in some manner with the

discharge of official duty ... there must be a

reasonable connection between the act and

the discharge of official duty; the act must

bear such relation to the duty that the

accused could lay a reasonable (claim) but not

a pretended or fanciful claim, that he did it in

the course of the performance of his duty."

If on facts, therefore, it is prima facie found that the act

or omission for which the accused was charged had

reasonable connection with discharge of his duty then it must

be held to be official to which applicability of Section 197 of

the Code cannot be disputed.

The above position was highlighted in State of H.P. v.

M.P. Gupta (2004 (2) SCC 349), State of orissa through Kumar

Raghvendra Singh & Ors. v. Ganesh Chandra Jew (JT 2004(4)

SC 52), Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath and

Anr. (JT 2004(6) SC 323), K. Kalimuthu v. State by DSP (2005

(4) SCC 512) and Rakesh Kumar Mishra v. The State of Bihar

and Anr. (2006 (1) SCC 557).

In Rakesh Kumar Mishra's case (supra) it was inter alia

observed as follows:

"14. In S.A. Venkataraman v. The State (AIR

1958 SC 107) and in C. R. Bansi v. The State

of Maharashtra (1970 (3) SCC 537) this Court

has held that:

"There is nothing in the words used

in Section 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."

Xx xx xx

16. When the newly-worded section appeared

in the Code (Section 197) with the words

"when any person who is or was a public

servant" (as against the truncated expression

in the corresponding provision of the old Code

of Criminal Procedure, 1898) a contention was

raised before this Court in Kalicharan

Mahapatra v. State of Orissa (1998 (6) SCC

411) that the legal position must be treated as

changed even in regard to offences under the

Old Act and New Act also. The said contention

was, however, repelled by this Court wherein a

two-Judge Bench has held thus:

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"A public servant who committed an

offence mentioned in the Act, while

he was a public servant, can be

prosecuted with the sanction

contemplated in Section 197 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 the offence without any such

sanction."

17. The correct legal position, therefore, is that

an accused facing prosecution for offences

under the Old Act or New Act cannot claim any

immunity on the ground of want of sanction, if

he ceased to be a public servant on the date

when the court took cognizance of the said

offences. But the position is different in cases

where Section 197 of the Code has application.

18. Section 197(1) provides that when any

person who is or was a public servant not

removable from his office save by or with the

sanction of the Government 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, no Court shall

take cognizance of such offence except with

the previous sanction (a) in the case of a

person who is employed or, as the case may

be, was at the time of commission of the

alleged offence employed, in connection with

the affairs of the Union, of the Central

Government and (b) in the case of a person

who is employed or, as the case may be, was at

the time of commission of the alleged offence

employed, in connection with the affairs of a

State, or the State Government.

19. We may mention that the Law Commission

in its 41st Report in paragraph 15.123 while

dealing with Section 197, as it then stood,

observed:

"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

prosecution. It should be left to the

Government to determine from that

point of view the question of the

expediency of prosecuting any

public servant".

It was in pursuance of this observation that

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the expression 'was' come to be employed after

the expression 'is' to make the sanction

applicable even in cases where a retired public

servant is sought to be prosecuted."

In P.K. Pradhan v. State of Sikkim (2001 (6) SCC 704) it

has, inter alia, held as follows:

"The legislative mandate engrafted in

sub-section (1) of Section 197 debarring a

court from taking cognizance of concerned in a

case where the acts complained of are alleged

to have been committed by a public servant in

discharge of his official duty or purporting to

be in the discharge of his official duty and

such public servant is not removable from

office save by or with the sanction of the

Government, touches the jurisdiction of the

court itself. It is prohibition imposed by the

Statute from taking cognizance. Different tests

have been laid down in decided cases to

ascertain the scope and meaning of the

relevant words occurring in Section 197 of the

Code: "any offence alleged to have been

committed by him while acting or purporting

to act in the discharge of his official duty." The

offence alleged to have been committed must

have something to do, or must be related in

some manner, with the discharge of official

duty. No question of sanction can arise under

Section 197, unless the act complained of is an

offence; the only point for determination is

whether it was committed in the discharge of

official duty. There must be a reasonable

connection between the act and the official

duty. It does not matter even if the act

exceeds what is strictly necessary for the

discharge of the duty, as this question will

arise only at a later stage when the trial

proceeds on the merits. What a court has to

find out is whether the act and the official duty

are so interrelated that one can postulate

reasonably that it was done by the accused in

the performance of official duty, though,

possibly I excess of the needs and

requirements of the situation."

The question relating to the need of sanction under

Section 197 of the Code is not necessarily to be considered as

soon as the complaint is lodged and on the allegations

contained therein. This question may arise at any stage of the

proceeding. The question whether sanction is necessary or

not may have to be determined from stage to stage.

So far as the question about the non application of mind

in the sanction or absence of sanction is concerned, this has

been answered in the first question i.e. where the public

servant has ceased to be a public servant since he has ceased

to hold the office where the alleged offence is supposed to

have been taken place, the other questions really become

academic.

A plea has been taken that charge sheet is a bundle of

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confusions and no definite material is placed on record to

substantiate the allegation of commission of any offence. This

assertion has been refuted by learned counsel for the

respondent-State with regard to various definite materials

indicating commission of offence. Particular reference has

been made to the following:

Pages 396-397, Volume 3 discloses how Rs.9 crores were

recycled by Badal family through the accounts of K.S. Siddhu

into the project ORBIT Resort.

Pages 398-399, 404-407, 416-420, 448 establishes facts

showing recycling of several crores of rupees with the aid of

Narottam Singh Dhillon, an NRI and close to Badal family.

Illegally earned money used to be deposited in the account of

Narottam Singh Dhillon who used to then get FDRs issued and

thereafter used to take loans against the FDRs. His bank

account shows operation during 1997-2002. This loan money

has been given to Parkash Singh Badal, S. Kaur and Sukhbir

Singh Badal as loans which have never been returned. This

recyling involved making of fake entries in the bank. There is

evidence showing taking of gratification in transfers, postings

and promotions.

Pages 430-434 show purchases of property and shares in

the name of Satnam Singh and Namta Singh who were close to

Badal family and the transfer of their interest to SB in the year

2001.

Pages 489-494: Evidence collected shows amassing of

benami property in the name of Shri Harbans Lal and his

family members who are close to Badal family.

Pages 499-502: reveals routing of black money into the

transport companies being run by the Badal family.

Pages 553-566 present a detailed analysis of the assets of

Badal family generated during the check period. Total

disproportionate asset is to the tune of Rs.78.39 crores. But

disproportion could not be explained. Present market worth is

over Rs.500 crores.

At pages 571-580 there is evidence to show flow of money

from abroad.

At page 582, it is specifically concluded that Parkash

Singh Badal colluded with his wife and son and other persons

and committed corruption at large scale and huge wealth and

money was amazed which is more than their disclosed income.

Page 611 onwards relates to only of the income and

wealth tax returns of Badal family during the check period.

Thus all relevant facts disclosing the offences committed by

Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal in

collusion with each other and with other persons is clearly set

out in the charge sheet and the same was submitted to the

Speaker along with relevant materials. The charge sheet is

neither jumbled nor unclear and sanctioning authority applies

his mind.

As regards the plea relating to non-definite offence, a few

provisions of the Code need to be noted. Sections 173, 215

and 220 reads as follows:

173. Report of police officer on completion

of investigation.\027(1) Every investigation under

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this Chapter shall be completed without

unnecessary delay.

(2) (i) As soon as it is completed, the officer in

charge of the police station shall forward to a

Magistrate empowered to take cognizance of the

offence on a police report, a report in the form

prescribed by the State Government, stating\027

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to

be acquainted with the circumstances of the

case;

(d) whether any offence appears to have been

committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his

bond and, if so, whether with or without

sureties;

(g) whether he has been forwarded in custody

under section 170.

(ii) The officer shall also communicate, in such

manner as may be prescribed by the State

Government, the action taken by him, to the

person, if any whom the information relating to

the commission of the offence was first given.

(3) Where a superior officer of police has been

appointed under section 158, the report, shall,

in any case in which the State Government by

general or special order so directs, be submitted

through that officer, and he may, pending the

orders of the Magistrate, direct the officer in

charge of the police station to make further

investigation.

(4) Whenever it appears from a report forwarded

under this section that the accused has been

released on his bond, the Magistrate shall make

such order for the discharge of such bond or

otherwise as he thinks fit.

(5) When such report is in respect of a case to

which section 170 applies, the police officer shall

forward to the Magistrate along with the report\027

(a) all documents or relevant

extracts thereof on which the

prosecution proposes to rely other

than those already sent to the

Magistrate during investigation;

(b) the statements recorded under

section 161 of all the persons

whom the prosecution proposes to

examine as its witnesses.

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(6) If the police officer is of opinion that any

part of any such statement is not relevant to the

subject-matter of the proceeding or that its

disclosure to the accused is not essential in the

interests of justice and is inexpedient in the

public interest, he shall indicate that part of the

statement and append a note requesting the

Magistrate to exclude that part from the copies to

be granted to the accused and stating his

reasons for making such request.

(7) Where the police officer investigating the

case finds it convenient so to do, he may

furnish to the accused copies of all or any of

the documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to

preclude further investigation in respect of an

offence after a report under sub-section (2) has

been forwarded to the Magistrate and, where

upon such investigation, the officer in charge of

the police station obtains further evidence, oral

or documentary, he shall forward to the

Magistrate a further report or reports regarding,

such evidence in the form prescribed; and the

provisions of sub-sections (2) to (6) shall, as far

as may be, apply in relation to such report or

reports as they apply in relation to a report

forwarded under sub-section (2).

215. Effect of errors.\027No error in stating

either the offence or the particulars required to

be stated in the charge, and no omission to

state the offence or those particulars, shall be

regarded at any stage of the case as material,

unless the accused was in fact misled by such

error or omission, and it has occasioned a

failure of justice.

220. Trial for more than one offence.\027(1) If,

in one series of acts so connected together as to

form the same transaction, more offences than

one are committed by the same person, he may

be charged with, and tried at one trial for, every

such offence.

(2) When a person charged with one or more

offences of criminal breach of trust or dishonest

misappropriation of properly as provided in

sub-section (2) of section 212 or in sub-section

(1) of section 219, is accused of committing, for

the purpose of facilitating or concealing the

commission of that offence or those offences,

one or more offences of falsification of accounts,

he may be charged with, and tried at one trial

for, every such offence.

(3) If the acts alleged constitute an offence

falling within two or more separate definitions

of any law in force for the time being by which

offences are defined or punished, the person

accused of them may be charged with, and tried

at one trial for, each of such offences.

(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

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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:

"72. Punishment of person guilty of one of

several offences, the judgment stating that

it is doubtful of which.--In all cases in which

judgment is given that a person is guilty of one

of several offences specified in the judgment,

but that it is doubtful of which of these

offences, he is guilty, the offender shall be

punished for the offence for which the lowest

punishment is provided if the same

punishment is not provided for all".

The report in terms of Section 173 of the Code is in the

nature of information to the Magistrate. Statutory requirement

is complied with if the requisite information is given. It

purports to be an opinion and therefore elaborate details are

not necessary. In K. Veeraswami v. Union of India and Ors.

(1991 (3) SCC 655) it was held as follows:

"The charge sheet is nothing but a final report

of police officer under Section 173(2) of the

Cr.P.C. The Section 173(2) provides that on

completion of the investigation the police

officer investigating into a cognizable offence

shall submit a report. The report must be in

the form prescribed by the State Government

and stating therein (a) the names of the

parties; (b) the nature of the information; (c)

the names of the persons who appear to be

acquainted with the circumstances of the case;

(d) whether any offence appears to have been

committed and, if so, by whom (e) whether the

accused has been arrested; (f) whether he had

been released on his bond and, if so, whether

with or without sureties; and (g) whether he

has been forwarded in custody under Section

170. As observed by this Court in Satya Narain

Musadi and Ors. v. State of Bihar (1980 (3)

SCC 152); that the statutory requirement of

the report under Section 173(2) would be

complied with if the various details prescribed

therein are included in the report. This report

is an intimation to the magistrate that upon

investigation into a cognizable offence the

investigating officer has been able to procure

sufficient evidence for the Court to inquire into

the offence and the necessary information is

being sent to the Court. In fact, the report

under Section 173(2) purports to be an opinion

of the investigating officer that as far as he is

concerned he has been able to procure

sufficient material for the trial of the accused

by the Court. The report is complete if it is

accompanied with all the documents and

statements of witnesses as required by Section

175(5). Nothing more need be stated in the

report of the Investigating Officer. It is also not

necessary that all the details of the offence

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must be stated. The details of the offence are

required to be proved to bring home the guilt

to the accused at a later stage i.e. in the

course of the trial of the case by adducing

acceptable evidence."

Mere non-description of the offences in detail is really not

material. At the stage of framing charge it can be urged that

no offence is made out.

With reference to the absence of allegations under

Sections 8 and 9 of the Act, it is submitted whether the charge

sheet has reference to any particular material referred to in it

and the relevance of it is to be considered at the time when

the charge is framed. It would not be desirable to analyse

minutely the materials as at that stage the Court is primarily

concerned with the question as to whether charge is to be

framed in respect of any offence and whether there prima facie

appears existence of any material and not the sufficiency of

the materials. Therefore, the appellants' stand that the charge

sheet does not refer to any particular material cannot be

accepted, more particularly, in view of the specific materials

referred to by learned counsel for the respondent-State.

It is the stand of the State that the appellant-Parkash

Singh Badal was the fulcrum around which the entire

corruption was woven by the members of his family and

others and it was his office of Chief Minister-ship which had

been abused. Therefore, Sections 8 and 9 of the Act would not

be applicable to him and would apply only to his wife, son and

others. It is the stand of the appellants that in the documents

filed only Section 13(1) has been only mentioned and not the

exact alleged infraction. It is to be noted that the offence of

criminal mis-conduct is defined in Section 13. Five clauses

contained in the said provision represent different types of

infraction under which the offence can be said to have been

committed. If there is material to show that the alleged offence

falls in any of the aforesaid categories, it is not necessary at

the stage of filing of the charge sheet to specify as to which

particular clause covers the alleged offence. It is the stand of

the respondent-State that clauses (a), (b) (d) and (e) are all

attracted and not clause (c). Therefore, the sanctioning

authority has rightly referred to Section 13(1) and that does

not make the sanction order vulnerable.

The sanctioning authority is not required to separately

specify each of the offence against the accused public servant.

This is required to be done at the stage of framing of charge.

Law requires that before the sanctioning authority materials

must be placed so that the sanctioning authority can apply his

mind and take a decision. Whether there is an application of

mind or not would depend on the facts and circumstances of

each case and there cannot be any generalized guidelines in

that regard.

The sanction in the instant case related to offences

relatable to Act. There is a distinction between the absence of

sanction and the alleged invalidity on account of non

application of mind. The former question can be agitated at

the threshold but the latter is a question which has to be

raised during trial.

Great emphasis has been led on certain decisions of this

Court to show that even in relation to offences punishable

under Section 467 and 468 sanction is necessary. The

foundation of the position has reference to some offences in

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Rakesh Kumar Mishra's case (supra). That decision has no

relevance because ultimately this Court has held that the

absence of search warrant was intricately with the making of

search and the allegations about alleged offences had their

matrix on the absence of search warrant and other

circumstances had a determinative role in the issue. A

decision is an authority for what it actually decides. Reference

to a particular sentence in the context of the factual scenario

cannot be read out of context.

The offence of cheating under Section 420 or for that

matter offences relatable to Sections 467, 468, 471 and 120B

can by no stretch of imagination by their very nature be

regarded as having been committed by any public servant

while acting or purporting to act in discharge of official duty.

In such cases, official status only provides an opportunity for

commission of the offence.

In Baijnath v. State of M.P. (1966 SCR 210) the position

was succinctly stated as follows:

"\005\005..it is the quality of the Act that is

important and if it falls within the scope and

range of his official duty the protection

contemplated by Section 197 of the Code of

Criminal Procedure will be attracted."

So far as the appellant Sukhbir Singh Badal is

concerned, the stand is that he being a member of the

Parliament is a public servant and cannot be charged with

offences under Sections 8 and 9 of the Act. His contention is

that Sections 8, 9, 12, 14 and 24 of the Act are applicable to

private persons and not to public servants. The opening word

of Sections 8 and 9 is "whoever". The expression is very wide

and would also cover public servants accepting gratification as

a motive or reward for inducing any other public servant by

corrupt or illegal means. Restricting the operation of the

expression by curtailing the ambit of Sections 8 and 9 and

confining to private persons would not reflect the actual

legislative intention.

If Section 8 is analytically dissected then it would read as

below:

(i) Whoever

(ii) Accepts or obtains gratification from any

person

(iii) For inducing any public servant (by corrupt or

illegal means)

(iv) To render or attempt to render any services or

disservice (etc.)

(v) With any public servant (etc.)

So far as Section 9 is concerned the only difference is

that inducement is "by the exercise of personal influence". The

above analysis shows that public servants may be involved.

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

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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.

Another difference is that Section 13(1)(d) envisages

obtaining of any valuable thing or pecuniary advantage. On

the other hand Sections 8 and 9 are much wider and

envisages taking of "any gratification whatever". Explanation

(b) of Section 7 is also relevant.

The word 'gratification' is not restricted to pecuniary

gratifications or to gratifications estimable in money. Thus,

Sections 8 and 9 are wider than Section 13(1)(d) and clearly

constitute different offences.

Section 24 envisages the making of a statement by a

person in any proceeding against the public servant for an

offence under Sections 7 to 11 or Sections 13 and 15. It is

clear from Section 24 that there can be a proceeding against

public servant for which offence under Sections 7 to 11 which

per se includes Sections 8 and 9. On the face of this provision,

it cannot be contended that a public servant cannot be

proceeded against Sections 8 and 9.

Great emphasis has been led by the appellants on some

factual scenario to show that the complainant was close to

incumbent Chief Minister and he has been rewarded

subsequently for making the complaint. In essence, the plea is

that mala fides are involved. This allegation of mala fides is

also linked with the so called conferment of power with the

particular police station at Mohali and conferment of

jurisdiction on a particular Special Judge by Notification dated

17.11.2003.

A plea of mala fides has not only to be clearly pleaded but

specifically proved by adducing cogent evidence. Mere

allegation and suspicions would not be sufficient. The person

against whom mala fides conduct is attributed is interestingly

not a party in the proceedings.

So far as the allegation that political opponent had lodged

the complaint is concerned, that itself is not sufficient for the

Court to interfere. When the allegation is made, investigation

is undertaken to find out whether there is any substance in

the allegation. Merely because the political opponent was the

complainant that does not per se lead to an inference that the

complaint has to be thrown out or that no notice should be

taken thereof.

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Before dealing further whether the submissions ought to

prevail, the legal principles governing the registration of a

cognizable offence and the investigation arising thereon need

to be noted. Section 154(1) is the relevant provision regarding

the registration of a cognizable offence and that provision

reads as follows:

"154. Information in cognizable cases.-(1)

Every information relating to the commission

of a cognizable offence, if given orally to an

officer in charge of a police station, shall be

reduced to writing by him or under his

direction, and be read over to the informant;

and every such information, whether given in

writing or reduced to writing as aforesaid, shall

be signed by the person giving it, and the

substance thereof shall be entered in a book to

be kept by such officer in such form as the

State Government may prescribe in his

behalf".

The above sub-section corresponds to Section 154 of the

Old Code (Act of 1898 to which various amendments were

made by Act 26 of 1955 and also to Section 154 of the Code of

Criminal Procedure of 1882 (Act 10 of 1882) except for the

slight variation in that expression 'local government' had been

used in 1882 in the place of 'State Government'. Presently, on

the recommendations of the Forty-first Report of the Law

Commission, the sub-sections (2) and (3) have been newly

added but we are not concerned with those provisions as they

are not relevant for the purpose of the disposal of this case

except for making some reference at the appropriate places, if

necessitated. Section 154(1) regulates the manner of recording

the first information report relating to the commission of a

cognizable offence.

The legal mandate enshrined in Section 154 (1) is that

every information relating to the commission of a 'cognizable

offence' (as defined under section 2 (c) of the Code) if given

orally ( in which case it is to be reduced into writing) or in

writing to "an officer incharge of a police station" (within the

meaning of Section 2(o) of the Code) and signed by the

informant should be entered in a book to be kept by such

officer in such form as the State Government may prescribe

which form is commonly called as "First Information Report"

and which act of entering the information in the said form is

known as registration of a crime or a case.

At the stage of registration of a crime or a case on the

basis of the information disclosing a cognizable offence in

compliance with the mandate of Section 154 (1) of the Code,

the concerned police officer cannot embark upon an enquiry

as to whether the information, laid by the informant is reliable

and genuine or otherwise and refuse to register a case on the

ground that the information is not reliable or credible. On the

other hand, the officer in charge of a police station is

statutorily obliged to register a case and then to proceed with

the investigation if he has reason to suspect the commission of

an offence which he is empowered under Section 156 of the

Code to investigate, subject to the proviso to Section 157

thereof. In case, an officer in charge of a police station refuses

to exercise the jurisdiction vested in him and to register a case

on the information of a cognizable offence reported and

thereby violates the statutory duty cast upon him, the person

aggrieved by such refusal can send the substance of the

information in writing and by post to the Superintendent of

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Police concerned who if satisfied that the information

forwarded to him discloses a cognizable offence, should either

investigate the case himself or direct an investigation to be

made by any police officer subordinate to him in the manner

provided by sub-section (3) of Section 154 of the Code.

It has to be noted that in Section 154(1) of the Code, the

legislature in its collective wisdom has carefully and cautiously

used the expression "information" without qualifying the same

as in Section 41(1)(a) or (g) of the Code wherein the

expressions, "reasonable complaint" and "credible information"

are used. Evidently, the non-qualification of the word

"information" in Section 154(1) unlike in Section 41(1)(a) and

(g) of the Code may be for the reason that the police officer

should not refuse to record an information relating to the

commission of a cognizable offence and to register a case

thereon on the ground that he is not satisfied with the

reasonableness or credibility of the information. In other

words, 'reasonableness' or 'credibility' of the said information

is not a condition precedent for registration of a case. A

comparison of the present Section 154 with those of the earlier

Codes will indicate that the legislature had purposely thought

it fit to employ only the word "information" without qualifying

the said word. Section 139 of the Code of Criminal Procedure

of 1861 (Act XXV of 1861) passed by the Legislative Council of

India read that 'every complaint or information' preferred to an

officer incharge of a police station should be reduced into

writing which provision was subsequently modified by Section

112 of the Code of 1872 (Act X of 1872) which thereafter read

that 'every complaint' preferred to an officer incharge of a

police station shall be reduced in writing. The word 'complaint'

which occurred in previous two Codes of 1861 and 1872 was

deleted and in that place the word 'information' was used in

the Codes of 1882 and 1898 which word is now used in

Sections 154, 155, 157 and 190(c) of the Code. An overall

reading of all the Codes makes it clear that the condition

which is sine-qua-non for recording a First Information Report

is that there must be an information and that information

must disclose a cognizable offence.

It is, therefore, manifestly clear that if any information

disclosing a cognizable offence is laid before an officer incharge

of a police station satisfying the requirements of Section 154(1)

of the Code, the said police officer has no other option except

to enter the substance thereof in the prescribed form, that is

to say, to register a case on the basis of such information.

In this connection, it may be noted that though a police

officer cannot investigate a non-cognizable offence on his own

as in the case of cognizable offence, he can investigate a non-

cognizable offence under the order of a Magistrate having

power to try such non-cognizable case or commit the same for

trial within the terms under Section 155(2) of the Code but

subject to Section 155(3) of the Code. Further, under sub-

section (4) to Section 155, where a case relates to two offences

to which at least one is cognizable, the case shall be deemed to

be a cognizable case notwithstanding that the other offences

are non-cognizable and, therefore, under such circumstances

the police officer can investigate such offences with the same

powers as he has while investigating a cognizable offence.

The next key question that arises for consideration is

whether the registration of a criminal case under Section

154(1) of the Code ipso facto warrants the setting in motion of

an investigation under Chapter XII of the Code.

Section 157(1) requires an Officer Incharge of a Police

Station who 'from information received or otherwise' has

reason to suspect the commission of an offence-that is a

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cognizable offence-which he is empowered to investigate under

Section 156, to forthwith send a report to a Magistrate

empowered to take cognizance of such offence upon a police

report and to either proceed in person or depute any one of his

subordinate Officers not being below such rank as the State

Government may, by general or special order, prescribe in this

behalf, to proceed to the spot, to investigate the facts and

circumstances of the case and if necessary, to take measures

for the discovery and arrest of the offender. This provision is

qualified by a proviso which is in two parts (a) and (b). As per

Clause (a) the Officer Incharge of a Police Station need not

proceed in person or depute a subordinate officer to make an

investigation on the spot if the information as to the

commission of any such offence is given against any person by

name and the case is not of a serious nature. According to

Clause (b), if it appears to the Officer Incharge of a Police

Station that there is no sufficient ground for entering on an

investigation, he shall not investigate the case. Sub-section (2)

of Section 157 demands that in each of the cases mentioned in

Clauses (a) and (b) of the proviso to Sub-section (1) of Section

157, the Officer Incharge of the Police Station must state in

his report, required to be forwarded to the Magistrate his

reasons for not fully complying with the requirements of Sub-

section (1) and when the police officer decides not to

investigate the case for the reasons mentioned in Clause (b) of

the proviso, he in addition to his report to the Magistrate,

must forthwith notify to the informant, if any, in such manner

as may be prescribed by the State Government, the fact that

he will not investigate the case or cause the case to be

investigated. Section 156(1) which is to be read in conjunction

with Section 157(1) states that any Officer Incharge of a Police

Station may without an order of a Magistrate, investigate any

cognizable case which a Court having jurisdiction over the

local area within the limits of the concerned police station

would have power to enquire into or try under provisions of

Chapter XIII. Section 156(3) vests a discretionary power on a

Magistrate empowered under Section 190 to order an

investigation by a police officer as contemplated in Section

156(1). It is pertinent to note that this provision does not

empower a Magistrate to stop an investigation undertaken by

the police. (See State of Bihar and Anr. v. J.A.C. Saldanha and

Ors. (1980 (1) SCC 554) In that case, power of the Magistrate

under Section 156(3) to direct further investigation after

submission of a report by the investigating officer under

Section 173(2) of the Code was dealt with. It was observed as

follows:

"The power of the Magistrate under Section

156(3) to direct further investigation is clearly

an independent power and does not stand in

conflict with the power of the State

Government as spelt out hereinbefore. The

power conferred upon the Magistrate under

Section 156(3) can be exercised by the

Magistrate even after submission of a report by

the investigating officer which would mean

that it would be open to the Magistrate not to

accept the conclusion of the investigating

officer and direct further investigation. This

provision does not in any way affect the power

of the investigating officer to further investigate

the case even after submission of the report as

provided in Section 173(8)."

The above position has been highlighted in State of Haryana

and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335).

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In State of Punjab and Anr. v Gurdial Singh and Ors.

(1980 (2) SCC 471) it was observed as follows:

"\005..If the use of the power is for the

fulfilment of a legitimate object the actuation

or catalysation by malice is not legicidal."

At this stage it needs to be clarified that the obligation to

register a case is not to be confused with the remedy if same is

not registered. Issue of the remedy has been decided by this

Court in several cases. (See Gangadhar Janardan Mhatre v.

State of Maharashtra and Ors. (2004 (7) SCC 768)

The ultimate test therefore is whether the allegations

have any substance. An investigation should not be shut out

at the threshold because a political opponent or a person with

political difference raises an allegation of commission of

offence. Therefore, the plea of mala fides as raised cannot be

maintained.

So far as conferment of jurisdiction with the police

station over the whole State is concerned, it appears that the

same was created on 31.10.1994 by the then Government of

Chandigarh and by order dated 20.4.1995 the office of

Superintendent of Police, Vigilance Flying Squad-I/Criminal

Investigation Agency, Chandigarh was shifted to Police

Station, Mohali. This order continued to operate subsequently.

As rightly contended by learned counsel for the respondent-

State, the fresh notification was issued creating some more

police stations qua other districts. It is pointed out that PS

Mohali falls within the Ropar district and within the area of

Special Judge, Ropar as was specified in consultation with the

Punjab and Haryana High Court. The Special Judges are

transferred by the High Court and, therefore, the allegation of

choosing any Special Judges with oblique motive is clearly

without any substance. The notification regarding the re-

organization of the police station with Police Station, Mohali

having jurisdiction over the whole State of Punjab was notified

on 19.12.2002.

At this juncture, it is relevant to note that allegations of

impropriety were made because of the Notification dated

17.11.2003 relating to jurisdiction of the Special Judge. A few

relevant aspects need to be noted at this juncture. The Court

of Special Judge, Ropar was created by Notification dated

5.1.1990 of the State Government which was issued in

consultation with the High Court for the area of Ropar District.

Another Notification was issued on 5.9.2000 in consultation

with the High Court. By this Notification, Sessions Judges in

the State of Punjab were appointed as Special Judges within

their respective districts. The Notification dated 31.10.1994

creating P.S., Chandigarh with Statewide jurisdiction which

was shifted to P.S., Mohali by order dated 20.4.1995 was

already in existence when Sessions Judges were made Special

Judges. There is no dispute about this fact.

The controversy revolves around the Notification dated

19.10.2002 regarding P.S., Mohali with Statewide jurisdiction.

According to learned counsel for the respondent-State it

represents a continuity and there was no new creation. So far

as the Notification dated 17.11.2003 is concerned,

undisputedly, the expression used is "appoint". It was clarified

that though the said expression has been used, it did not

actually mean appointment of a Sessions Judge and First

Additional Sessions Judge, Ropar as Special Judges. They

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were already appointed and designated as stated in the

Notification itself. What was intended related to allocation of

cases registered at P.S., Mohali to the existing Courts of

Special Judges, Ropar. There is also no dispute that P.S.,

Mohali falls within the area of district Ropar over which

Special Judges, Ropar had jurisdiction as approved by the

High Court.

Stand of learned counsel for the State is that since the

impugned notification allocated certain cases to Courts of

Special Judges already established with the consultation with

the High Court, no further consultation was required.

It is pointed out that said re-allocation does not impinge

upon the control of the High Court as envisaged by Article

235 of the Constitution.

There is no doubt that the control of the High Court is

comprehensive, exclusive and effective and it is to subserve

the basic feature of Constitution, i.e. independence of

judiciary. [See High Court of Judicature for Rajasthan v.

Ramesh Chand Paliwal and Anr. (1998 (3) SCC 72) and

Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta

Satapathy (dead) by Lrs. and Anr. ( 1999 (7) SCC 725)]

Articles 233 and 234 of the Constitution are not attracted

because this is not a case where appointment of persons to be

Special Judges or their postings to a particular Special Court

is involved. It is however factually conceded that the

expression "notwithstanding the jurisdiction of other Special

Judges in the State of Punjab" is not necessary.

Once group of cases are allocated to Special Court,

consequentially other Special Courts cannot deal with them.

Use of the afore-said expression was really un-necessary. We

consider it to be severable and so direct.

At this juncture, it is to be noted that learned counsel for

the State submitted that to avoid any fear of forum shopping,

the State is even willing to abide by the decision of this Court

if the trial takes place in Chandigarh or wherever this Court

directs, and to show that the State has no intention to the trial

being conducted at a particular place and to prove its

transparency the stand is taken. We do not think it necessary

to so direct, because the expression "notwithstanding the

jurisdiction of other Special Judges in the State of Punjab" has

already been stated to be unnecessary and would be of no

consequence. That being so, the plea in that regard as raised

by the appellants also fails.

Since all the challenges have been held to be without

substance, the inevitable result is that the appeals deserve to

be dismissed which we direct.