Ram Nandan Prasad, J.
1. These two petitions have been filed under Section 482 of the Code of Criminal Procedure, 1973 against the order dated 9.6.2000 passed by the Special Judge, CBI, Patna in Special Case No. 5/98, whereby the petitions filed by the petitioners for their discharge have been rejected and charges have been framed for the offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, hereinafter referred to as the 1988 Act, against Sri Lalu Prasad, hereinafter referred to as Sri Prasad, petitioner in Cr. Misc. No. 14894/2000, and under Section 109, IPC read with Section 13(2) read with Section 13(1)(e) of the P.C. Act, against Smt. Rabri Devi, petitioner in Cr. Misc. No. 14895/2000.
2. Before we deal with the respective contentions of the parties, it would be appropriate to take note of certain relevant facts. On 19th February, 1996, the State Government in supersession of all previous Notifications issued a Notification under Section 6 of the Delhi Special Police Establishment Act, 1946 and thereby granted consent to all members of the Delhi Special Police establishment (CBI) to exercise powers and jurisdiction under the Delhi Special Police Establishment Act, 1946 for the whole of the State of Bihar in respect of investigation of, inter alia, offences punishable under the Prevention of Corruption Act, 1947 with a proviso that where the public servant employed in connection with, inter alia, the affairs of the Government of Bihar in relation to offences under said Act, prior consent of the State Government shall be obtained.
3. On 11th March, 1996, a Division Bench of this Court in the case of Sushil Kumar Modi and Ors. v. The State of Bihar and Ors., 1996(1) PLJR 561, directed the Central Bureau of Investigation, hereinafter referred to as 'the CBI', to inquire and scrutinize all cases of excess drawals and expenditure in the Department of Animal Husbandry in the State of Bihar during the period 1977-78 to 1995-1996 and to lodge cases where the drawals were found to be fraudulent in character and to take the investigation in those cases to its logical end, as early as possible preferably within four months and suspended the investigations by the State Police in the cases already instituted, taking into consideration the Notification dated 19th February, 1996.
4. The matter went before the Supreme Court in the case of State of Bihar and Anr. v. Ranchi Zila Samta Party and Anr., 1996(1) PLJR 97 (SC) and the Apex Court affirmed the said order of this Court dated 11th March, 1996 with certain modifications. The Apex Court by its judgment and order directed that the investigation by the CBI should be under the overall control and supervision of the Patna High Court to alleviate the apprehensions of the State about the control of the investigation by the CBI. The Apex Court entrusted the CBI to investigate the case and directed the officers of the CBI to inform the Chief Justice of this Court from time to time of the progress made in the investigation and also to obtain directions in the matter of conducting the investigation, if needed. The Chief Justice was authorized to post the matter for directions before a Bench presided over by him or to constitute any other appropriate Bench. The Apex Court then observed that after the investigation is over and reports are finalized, as indicated by the Division Bench of this Court in its judgment, expeditious follow up action shall be taken, and the High Court and the State Government shall co-operate in assigning adequate number of Special Judges to deal with the cases expeditiously so that no evidence may be lost sight of.
5. Subsequently a Division Bench of this Court started monitoring the investigation by the CBI and in course of monitoring the case by an order dated 23rd August, 1996 asked the CBI to file an affidavit as to why in view of materials already collected, separate cases with respect to offences prescribed under Section 13(1)(e) of the 1988 Act had not been instituted against the parties.
6. Thereafter on 19th August, 1988, a First Information Report was lodged against Shri Prasad wherein it was contended that he, while functioning as Chief Minister acquired huge assets by corrupt or illegal means, is in possession of disproportionate assets to the tune of Rs. 42,52,119/-. On 2nd August, 1999 the Investigating Officer, reported to his superior officer in relation to materials collected during investigation. At this juncture it should be noted that during the period between 10th January, 1990 and 9th March, 1990, Shri Prasad was a Member of Parliament. On 10th March, 1990 Shri Prasad was sworn in as the Chief Minister of the State of Bihar and remained as such till 28th March, 1995. During the period 29th March, 1995 and 4th April, 1995 Shri Prasad was a member of the Legislative Assembly of the State of Bihar. Again on 5th April, 1995 Shri Prasad was sworn in as the Chief Minister of the State of Bihar and remained as such until 25th July, 1997.
7. On 3rd March, 2000, Shri Nitish Kumar was sworn in as the Chief Minister of the State of Bihar. On 8th March, 2000, the CBI approached the Governor of Bihar directly for obtaining sanction to prosecute Shri Prasad while functioning as the Chief Minister of the State of Bihar during the period from 10th March, 1990 to 25th July, 1997 amassed assets and pecuniary resources through corrupt, dubious and questionable means in his name and also in the name of his family members consisting of his wife Smt. Rabri Devi and his children to the tune of Rs. 46,26,826.87/- which are disproportionate to his known sources of income and for that Shri Prasad could not render any satisfactory account/explanation. It was also stated that prior to the check period i.e. 10th March, 1990. Shri Prasad, his wife Smt. Rabri Devi and his children were having total assets, both movable and immovable worth about Rs. 6,44,996.26/- and those assets were not taken into account in calculating disproportionate assets acquired during the check period of 10th March, 2000. The Governor of Bihar accorded sanction under Section 197 of the Code of Criminal Procedure and also under Section 19 of the 1988 Act. The relevant portion of the said sanction is as follows :--
'That said Sri Lalu Prasad has been found as 31.3.1997 in the possession of assets to the tune of Rs. 46,26,826.87/-as aforesaid which are disproportionate to his known sources of income for which Sri Lalu Prasad could not render satisfactory account/explanation and as such said Sri Lalu Prasad committed offence of criminal misconduct under Section 13(1)(e) of Prevention of Corruption Act, 1988.
That Smt. Rabri Devi held considerable part of the said disproportionate assets in her name and in the name of her children knowing that these assets were acquired by her husband Sri Lalu Prasad through dubious, corrupt and questionable means. Smt. Rabri Devi in the months of October/November, 1996 filed Income-tax returns for the first time for the assessment years 1986-87 to 1996-97 declaring her false income from dairy farming and agriculture, in order to aid her husband Sri Lalu Prasad to account for his unexplained pecuniary resources in the acquisition of aforesaid assets. The Income-tax authorities have found that Smt. Rabri Devi did not have any such income of her own from dairy farming prior to the assessment year 1993-94, nor she had any business infrastructure.
That the above acts of Smt. Rabri Devi amount to aiding and abetting the commission of offence under Section 13(1)(e) of Prevention of Corruption Act, 1988 by her husband Sri Lalu Prasad, Smt. Rabri Devi thus committed offence under Section 107/109, Indian Penal Code.
AND WHEREAS, the aforesaid facts disclose commission of offence by said Sri Lalu Prasad under Section 13(1)(e) of Prevention of Corruption Act, 1988 punishable under Section 13(2) of the said Act and under Section 109, Indian Penal Code by Smt. Rabri Devi, wife of said Sri Lalu Prasad.
AND WHEREAS, the Governor of Bihar, after carefully and examining the materials viz. statements of witnesses and documents etc. in regard to said allegations and circumstances of the case consider that the said Sri Lalu Prasad, the then Chief Minister of Bihar should be prosecuted in the Court of law for the said offence(s) under Section 13(1)(e) of Prevention of Corruption Act, 1988 punishable under Section 13(2) of the said Act read with 109, IPC.
Now, THEREFORE, the Governor of Bihar does hereby accord sanction under Section 197(1)(b) of the Code of Criminal Procedure, 1973 and also under Section 19(1)(b) of Prevention of Corruption Act, 1988 for the prosecution of the said Sri Lalu Prasad, the then Chief Minister for the said offences and any other offences punishable under the provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences by a Court of Competent jurisdiction.
8. The said sanction was signed by the order and in the name of the Governor of Bihar by the Secretary to the Governor of Bihar.
9. On 10th March, 2000 Smt. Rabri Devi was sworn in as the Chief Minister of the State of Bihar. On 11th March, 2000, Shri Prasad took oath as Member of Legislative Assembly of the State of Bihar and as such became a Member of the Legislative Assembly of the State of Bihar.
10. On 4th April, 2000, the CBI filed a charge-sheet before the Special Judge, CBI. Patna in Special Case No. 5/1998 along with the sanction order. At the same time, the CBI also filed, a petition praying for taking of cognizance and for issuance of non-bailable warrant of arrest against the accused persons. In the charge-sheet it was inter alia stated that Shri Prasad functioned as the Chief Minister of the State of Bihar from 10th March, 1990 to 28th March, 1995 and from 4th April, 1995 to 27th July, 1997, and therefore he was a public servant within the meaning of Section 2(e) of the PC Act. The investigation has revealed that. Sri Prasad acquired most of the assets during aforesaid period by resorting to corrupt and illegal means. The check period for computation of assets acquired by Sri Prasad in his name and in the names of his dependent family members has been taken from 10th March, 1990 to 31st March, 1997. Prior to 10th March, 1990 Shri Prasad was having total assets, movable and immovable, worth about Rs. 6,44,996.27/-. During the check period, 10th March, 1990 to 31st March, 1997, Sri Prasad was found in possession of property and pecuniary resources disproportionate to his known sources of income to the extent of Rs. 46,26,826.87/- standing in his name and in the name of members of his family dependent on him. Smt. Rabri Devi held considerable property of the said disproportionate assets in her name and in the names of her minor children knowing or having reason to believe that these assets were acquired by her husband Sri Prasad beyond his known sources of income. Smt. Rabri Devi in the months of October/ November, 1996 filed Income-tax returns for the first time for the Assessment Years 1986-87 to 1996-97 in one bunch declaring certain incomes belatedly from dairy farming and agriculture, which were found to be an afterthought in order to aid and enable her husband Sri Prasad to account for his unexplained pecuniary resources invested on the acquisition of the said assets. Smt. Rabri Devi did not have any such income of her own from dairy farming prior to the assessment year 1993-94, nor had she any business infrastructure, and as such Sri Prasad being the public servant has committed the offence of criminal misconduct under Section 13(1)(e) of the 1988 Act punishable under Section 13(2) of the said Act. In course of the same transactions Smt. Rabri Devi being the wife of Sri Prasad abetted him in the commission of the aforesaid offence of criminal misconduct under Section 13(1)(e) of the said Act by allowing him to acquire a substantial portion of his assets in her name and in the names of their minor children and also by holding the said assets (pecuniary resources and property) on behalf of Sri Prasad which are disproportionate to the known sources of income of Sri Prasad and thereby Smt. Rabri Devi committed the offence under Section 109 of the Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the 1988 Act. The sanction for prosecution of Sri Prasad issued by the Governor of Bihar under Section 197(1)(b) of the Code of Criminal Procedure and 19(1)(b) of the 1988 Act was enclosed with the charge-sheet.
11. The learned Special Judge, CBI, Patna on perusal of the charge-sheet found a prima facie case against the petitioners for offences under the sections referred to in the charge-sheet and accordingly took cognizance thereunder on 4th April, 2000 and directed issuance of non-bailable warrant of arrest against the accused person and to hand over the same to the Investigating Officer of the case through the Public Prosecutor for its execution.
12. On 5th April, 2000, Sri Prasad and Smt. Rabri Devi surrendered before the Special Judge. CBI, Patna and simultaneously applied for grant of bail. While Smt. Rabri Devi was granted bail, the prayer for bail of Sri Prasad was rejected. Thereupon on 6th June, 2000, Sri Prasad and Smt. Rabri Devi filed petitions for their discharge before the Special Judge, CBI, Patna. In that application it was stated that the CBI had no authority to investigate or institute cases in relation to a public servant employed in connection with affairs of the State Government without the consent of the State Government and accordingly the investigation and institution of the case against Sri Prasad and Smt. Rabri Devi is completely without jurisdiction; from the recital of the sanction granted by the Governor, it would be evident that the contention that the Income-tax authorities have found that the income declared by Smt. Rabri Devi from dairy business and agriculture is false, is entirely wrong as till the date of sanction, none of the Income-tax authorities had found that the agriculture income of Smt. Rabri Devi is false and that only after the sanction was granted, on different dates, statements in that regard had been recorded by the CBI, which were not available to the sanctioning authority at the time of sanction, the sanction was thus granted in exercise of acrimonious power at the instance of rival political party; the Governor never sought aid and advice of the Council of Ministers and accorded the sanction of his own, which is impermissible; sanction of the Speaker of the Legislative Assembly, Bihar was a pre-condition before taking cognizance and the same has not been obtained, although in the case of Rajo Singh and Dr. Jagarnath Mishra such sanction was obtained by the CBI; Smt. Rabri Devi was at the material time a Member of the Legislative body apart from being the Chief Minister of the State and in absence of any sanction for her prosecution, no cognizance can be taken; though roving enquiry is not permissible while considering the matter relating to hearing on charge/discharge under Sections 239 and 240 of the Code of Criminal Procedure but the Court is not required to confine itself to the materials placed by the prosecution but is also entitled to consider the materials produced by the accused in relation thereto and if the same are considered, it would be evident that there is no foundation of the charge; the valuation of the properties has been done on the basis of valuation of Central Vigilance Commission on the basis of average rates of Building Construction Department of the State Government and the Cost Index of Delhi, ignoring that Delhi Cost Index has no relevance with construction of house at Patna; the valuation of the land has been made without any basis and ignoring the fact that the lands in question were not developed at the time of their acquisition; Sri Prasad has not claimed any right in his ancestral house and there is no material to show that he spent any amount on its development but the prosecution has saddled part of expenditure incurred in said house on Sri Prasad; while calculating the movable properties, the value of Maruti car acquired on loan had been included in his assets; the amounts obtained by the sons and daughters of Sri Prasad by way of gift and interest accrued thereon on their reinvestment were also included in his assets; Smt. Rabri Devi is the owner of the house prior to the check period and was getting rent from the house and her uncle had gifted agricultural land in early 1970 which was also yielding agricultural income and accordingly she has sources of income and was in a position to acquire properties and there is no evidence that she did not have dairy business prior to the check period; there is no direct evidence which would show that Sri Prasad was holding properties in benami name of his wife; the witnesses from the Income-tax Department before whom matters were pending could not have got their statements recorded in relation to those matters, accordingly no conviction can be passed on the basis of the materials on record and it is a fit case where the accused persons should be discharged.
13. In reply, the CBI dealt each of those contentions and supported its arguments by different judicial pronouncements. It was stated that by reason of the judgments of this Court and of the Apex Court, the CBI became entitled to prosecute any person involved in Animal Husbandry Department scam cases and since Sri Prasad is involved in those cases, in view of the specific directions of the High Court it was obligatory on the part of the CBI to initiate proceeding with respect to disproportionate assets against Sri Prasad. It was contended that Smt. Rabri devi was not a Member of any legislative body rather she was a housewife during the check period, Sri Prasad ceased to hold; any public office after expiry of the Eleventh Assembly of the State of Bihar and accordingly no sanction was required to prosecute either of them. It was specifically stated that on 4th April, 2000, when the charge-sheet was submitted and cognizance was taken Sri Prasad ceased to be a public servant and accordingly no sanction or permission was required for his prosecution. The other points were similarly dealt with. The learned Special Judge, CBI, Patna in his order dated 9th June, 2000 recorded the contentions of each of the parties, and also recorded the judicial pronouncements relied by the parties and dealt with the same in the manner as follows :--
'Perused the record and considered the submissions advanced by respective parties as well as the decisions relied upon by the parties. Considering the facts and circumstances, I do not find any substance in the submissions advanced on behalf of accused persons. The perusal of materials is showing me the existence of a prima facie case for framing of charge as proposed by prosecution. On considering the materials, I am of the opinion that there is ground for presuming that accused persons have committed the offence as stated and same can be tried by this Court. For the aforesaid reasons, the petitions filed on behalf of Lalu Prasad and Smt. Rabri Devi stand dismissed.
On the basis of materials, I find substance to frame charges for the offences under Section 13(2) read with 13(1)(e) of PC Act against Lalu Prasad and under Section 109, IPC read with 13(2), read with 13(1)(e) of PC Act against Smt. Rabri Devi.
The charges are accordingly framed and charges so framed are read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried.
Put up on 4.7.2000 for evidence. The Sr. P.P. is to produce witnesses. The office is to issue summons to the witnesses.'
14. In these applications, the petitioners have raised all those issues, which were raised by them before the learned Special Judge. In addition to that it was stated that in any event the order of the learned Special Judge dated 9th June, 2000 is not sustainable inasmuch as there is no reason in support of the order. In other words, it was contended that substantial questions of law had been raised before the learned Special Judge and though the learned Special Judge took note of those questions of law but did not indicate why he rejected the same and did not discharge the petitioners. The issues that were raised before the learned Special Judge, which were also raised in these petitions, have been dealt with in the counter affidavits filed by the CBI in the same manner as they were dealt with by the CBI before the learned Special Judge. In relation to the question of furnishing elaborate reasons, it has been stated that the fact that the learned Special Judge did not take note of the relevant issues and arguments of the parties will show that the learned Special Judge did apply his mind not only to the issues but also to the arguments made on behalf of the parties and in the circumstances that was enough while rejecting the applications of the petitioners for discharge, inasmuch as at the stage of framing of charge, the learned Special Judge should not have finally concluded any of the issues either on facts or on law.
15. After these applications were filed a learned Single Judge of this Court by an order dated 2nd August, 2000 admitted the applications for hearing and directed the same to be heard by a larger Bench. The Hon'ble Acting Chief Justice by an order dated 12th May, 2005 fixed the hearing of these applications on 6th May, 2005 at 10.30 a.m. and thereupon constituted the Bench consisting of ourselves. We heard the learned counsel for the parties on 16th May, 2005, 17th May, 2005 and 18th May, 2005.
16. The learned counsel appearing on / behalf of the petitioners submitted that it would be evident from the impugned order that substantial questions of law had been raised before the learned Special Judge, which questions if answered in favour of the petitioners, would entail a discharge of the petitioners and accordingly it was incumbent upon the learned Special Judge to give reasons why he was not accepting the contentions on the part of the petitioners in relation to those questions and accordingly he argued to set aside the impugned order and remit back the matters for reconsideration by the learned Special Judge with a direction to give reasons in support of his decision to be rendered on remand.
17. In support of his submissions he relied upon the judgment of the Supreme Court in the case of Woolcombers of India Ltd. v. Woolcombers Workers' Union and Anr., AIR 1973 SC 2758. It was submitted that it is a legal requirement of giving reasons. In this case the Supreme Court was concerned with final adjudication of the issues i.e. an award rendered by the Industrial Tribunal. The Supreme Court pronounced that giving of reasons in support of conclusions by judicial and quasi-judicial authorities, when exercising initial jurisdiction is essential for various 'reasons, firstly, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions, inasmuch as the very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion and the authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations; and secondly, it is a well known principle that justice should not only be done but should also appear to have been done and thirdly, an appeal generally lies from the decisions of judicial and quasi-judicial authorities to the Supreme Court by special leave granted under Article 136, and a judgment which does not disclose the reasons will be of little assistance to the Court and the Court will have to wade through the entire record and find for itself whether the decision in appeal is right or wrong so it is necessary to emphasize that judicial and quasi-judicial authorities should always give the reasons in support of their conclusions. Learned counsel for the petitioners next placed reliance on the judgment of the Supreme Court in the case of the Siemens Engineering and . v. The Union of India and Anr., AIR 1976 SC 1785. In this case, the Supreme Court was concerned as to the correctness of the amount of import duty chargeable on the goods imported. The original authority did not give reason, the collector did not give reason and Government of India also disposed of the proceeding in the same manner. In the circumstances, the Supreme Court observed that it is now settled law that where an authority makes an order in exercise of quasi-judicial function, it must record its reasons in support of the order it makes, and the rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.
18. The learned counsel for the petitioners submitted that giving reasons is a rule of law and in addition thereto it is a part of natural justice. In support of his submission he relied on a decision in the case of Union of India and Anr. v. Tulsiram Patel, AIR 1985 SC 1416. In this case, the Supreme Court was concerned with dismissal/removal of Government servants without holding any enquiry. In that context, the Supreme Court held that Article 14 forbids discrimination by law, i.e., treating persons similarly circumstanced differently or treating those not similarly circumstanced in the same way or, treating equals as unequals and unequals as equals, and that Article 14 prohibit hostile classification by law and are directed against discriminatory class legislation. In early days the Supreme Court was concerned with discriminatory and hostile class legislation and it was to that aspect of Article 14 that its attention was directed. As fresh thinking began to take place on the scope and ambit of Article 14, new dimensions to this guarantee of equality before law and equal protection of the law emerged and were recognized by the Supreme Court. It was realized that to treat one person differently from another when there was no rational basis for doing so would be arbitrary and thus discriminatory. It then observed as follows :--
'Arbitrariness can take many forms and shapes but whatever form or shape it takes, it is none the less discrimination. It also became apparent that to treat a person or a class of persons unfairly would be an arbitrary Act amounting to discrimination forbidden by Article 14. Similarly, this Court, recognized that to treat a person in violation of the principles of natural justice would amount to arbitrary and discriminatory treatment and would violate the guarantee given by Article 14.'
19. It was submitted by the learned counsel for the petitioners that the petitioners were entitled to know why the points raised by them in their applications for discharge were not sufficient points of discharge, and this right to know is the fundamental right of the petitioner as has been recognized by the Supreme Court. In this connection reference was made to a decision in the case of State of Karnataka v. L. Muniswamy and Ors., AIR 1977 SC 1489, while considering Section 227 of the Code of Criminal Procedure, it observed as follows :--
'It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is no sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case.'
In this case, at the commencement of the trial it was contended by the accused that there was no sufficient ground for proceeding with the prosecution and therefore they ought to be discharged. The contention of the accused that they ought to be discharged was accepted partially. The learned trial judge held that there was no case against three of accused persons and therefore they were entitled to be discharged and accordingly by an order, the learned trial judge discharged those three accused in exercise of his power under Section 227 of the Code of Criminal Procedure. After discharging those three accused persons, the learned Judge while turning to the case against the remaining accused persons, observed there was some material to hold that they had something to do with the incident, which occurred. Against that order, two revision petitions were filed in the High Court--one by four accused persons and the other by four other accused persons, and those were allowed by the High Court. The matter then reached the Supreme Court. It was contended before the Supreme Court, amongst others, that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of materials on the record in order to find out whether any charges could be legitimately framed against those 8 accused persons. In this context, the above observations were made. The Supreme Court then referred to the provisions contained in Section 482 of the Code of Criminal Procedure and held that in terms thereof the High Court possessed wholesome power to quash the proceeding, if it comes to the conclusion that allowing the proceeding to continue would be a abuse of the process of the Court or that the ends of the justice require that the proceeding ought to be quashed. On facts the Supreme Court found that there is no material on record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution.
20. It, therefore, appears that the trial Court did not record any reason why those 8 accused persons shall not be discharged. The High Court looked into the materials on record and found there was no material on record on the basis of which the Court could reasonably come to the conclusion that those accused persons were in any manner connected with the incident. The Supreme Court was also of the same view. I think that the observations, 'the object of the provision which requires the Sessions Judge to record his reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused' must be understood in the background of the facts of that case and should not be taken to be the declaration of law that the reasons must be disclosed when there is sufficient ground for proceeding against the accused. I think that the said expression should remain confined only when the judge is of the view that there is no sufficient ground for proceeding against the accused for that is the mandate of Section 227 of the Code of Criminal Procedure.
21. Learned counsel for the opposite party in this context submitted that the Court is required to give reasons only in case of discharge of the accused and not for framing charges against the accused. He pointed out Sections 227 and 228 of the Code of Criminal Procedure with respect to discharge of the accused and framing of the charges against the accused respectively in a case triable by the Court of session, Sections 239 and 240 with respect to discharge and framing charge in a case of warrant cases triable by Magistrate and also Section 245 with respect to discharge and framing charge in cases instituted otherwise than on the police report. For better appreciation the relevant provisions for discharge and framing charge in sessions triable cases, warrant cases triable by Magistrate and cases instituted otherwise than on a police report are quoted hereinbelow :--
TRIAL BEFORE A COURT OF SESSION
'277. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.--If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) ...
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
TRIAL OF WARRANT CASES BY MAGISTRATES
A-Cases instituted on a police report
239. When accused shall be discharged--If, upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.--(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and, which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
CASES INSTITUTED OTHERWISE THAN ON POLICE REPORT
245. When accused shall be discharged.--(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him.
22. It is, thus, evident from the aforesaid provisions that in all types of cases i.e. triable by the Court of Session, warrant cases triable by the Magistrate and cases instituted otherwise than on police report, the Court is required to assign reasons in case of discharge of the accused but in case of framing charge assigning reason is not required. The Court is only required to form an opinion that there is ground for presuming that the accused has committed the offence. The reason for not assigning reason for framing charge at this stage is only with a view that if any reason is assigned that may affect/prejudice the case of the accused at the stage of trial. In the case of State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 the Apex Court while considering Sections 227 and 228 held as follows :--
'Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment, which is to be finally, applied before recording a finding regarding the guilt or otherwise of the accused not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.'
23. Attention of the Court was also drawn to a decision in the case of Kanti Shah and Anr. v. State of West Bengal, reported in (2000) 1 SCC 722, where the Supreme Court considered the provisions of Sections 239, 240, 227 and 245 of the Code of Criminal Procedure. Sections 227, 239 and 245 authorise the Court to discharge the accused persons and to record reasons therefore. The moment discharge order is passed recording reasons is must but for framing charge the Court is required to form an opinion that there is ground for presuming that the accused has committed offence. In case of discharge of the accused the expression 'reason' has been inserted in Sections 227, 239 and 245 of the Code of Criminal Procedure; the expression 'opinion has been used deliberately and intentionally at the stage of framing charge because of the reason if reason is recorded in case of framing charge it may prejudice that case of the accused in trial. At the stage of framing charge the Court does not conclude anything finally, it merely takes first step in the trial. The Apex Court thus has held :
'It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused.
Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per Sub-section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.'
24. I am, therefore, of the view that in case of refusing to discharge, if the Court gives reasons in support of the refusal, that may affect the legal right of the accused even before giving him an opportunity and accordingly to avoid the same the legislature has only insisted upon an opinion and not reasons. Therefore, it is not necessary on the part of the learned Special Judge to give reasons in support of the impugned order. He was required to look into the materials before him and to hear the accused persons and then to form an opinion whether there is ground for presuming that the petitioners had committed the offence, which the Court is competent to try. In the impugned order the learned Special Judge has recorded the materials on record, which he had considered, the contentions of the parties before him and then expressed an opinion that there is ground for presuming that the petitioners had committed the offence and that he was competent to try the same. I am therefore, of the view that for not recording reasons why the petitioner have not been discharged, the impugned order is not liable to be interfered with.
25. Learned counsel for the petitioners did not take us through the materials on record for the purpose of urging that the same do not disclose that any Court could reasonably come to the conclusion that the petitioners cannot be prosecuted on the basis thereof for the offences for which they were sought to be prosecuted.
26. The learned counsel for the petitioners, however, next submitted that in any event without a prior sanction of the Speaker of the Legislative Assembly the petitioners could not be prosecuted.
27. Before proceeding to deal with this aspect of the matter, it would be appropriate to set out Sections 5(1)(e), 5(2) and 6 of the Prevention of Corruption Act, 1947, hereinafter referred to as 'the 1947 Act', as well as Sections 13(1)(e), 13(2) and Sections 19(1) and (2) of the 1988 Act which are as follows :--
Prevention of Corruption Act, 1947
'Section 5. Criminal misconduct in discharge of official duty.--(1) A public Servant is said to commit the offence of criminal misconduct.
(e) If he, or any person on his behalf is in possession of or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
(2) Any public servant who commits criminal misconduct shall be punishable 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; provide that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
Section 6. --Previous sanction necessary for prosecution.--(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (2) or Sub-section (3A) 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 the 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.
(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 of 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.'
Prevention of Corruption Act, 1988
Section 13. 'Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
Section 19. Previous sanction necessary for prosecution.--(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government,
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government.
(c) In the case, of any other person, of the authority competent to remove him from his office.
(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.'
28. At the time when the 1947 Act was made Sections 161 to 165(a) of the Indian Penal Code were in existence. A public servant therefore, could be proceeded with under Sections 161 to 165(a) of the Indian Penal Code and also under Section 5 of the 1947 Act, but no Court take cognizance of an offence punishable under the aforesaid section except with the previous sanction. With a view to make the anti-corruption law more effective by widening their coverage and by strengthening the provisions, the 1947 Act was repealed and the 1988 Act was brought in force and Sections 161 to 165(a) of the Indian Penal Code were omitted. The Prevention of Corruption Act, 1988 became a complete Code in relation to public servants. Chapter III of the 1988 Act specifies various offences and penalty therefore and it starts from Section 7 and ends at Section 16. Sections 8, 9, 12, and 14 describe the offences as well as penalties therefore, for such offences, there is no necessity of taking previous sanction, but in relation to offences punishable under Sections 7, 10, 11, 13 and 15 previous sanction is a must.
29. In terms of Section 2 of the 1947 Act, the public servant for the purposes of the said Act meant the public servant as defined in Section 21 of the Indian Penal Code. By Section 2(e)(viii) of the 1988 Act, public servant means, amongst others, any person who holds office by virtue of which he is authorized or required to perform any public duty. Public duty has been defined in Section 2(b) of the 1988 Act. This meaning of public servant was not akin to the meaning of public servant as was defined in Section 21 of the Indian Penal Code.
30. A look at Section 6 of the 1947 Act and a comparison thereof with Section 19, Sub-sections (1) and (2) of the 1988 Act, would show that they are almost identical except to the extent mentioned above, i.e. of the offences for which sanction is required to be taken. The fact, however, remains that the previous sanction as was required then is also now required to prosecute a public servant, but in the case of any other person such sanction was not required and still is not required and such sanction had to be had from the authority competent to remove the public servant from his office.
31. A question cropped up whether a sanction would be necessary under Section 6 of the 1947 Act when the public servant ceased to be a public servant before the Supreme Court in the case of S.A. Venkataraman v. The State, AIR 1958 SC 107. Three Hon'ble Judges of the Supreme Court taking into consideration the provisions of Section 6(1) and 6(2) of the 1947 Act has answered the question in the following manner.
'...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. It was suggested that Clause (c) in Section 6(1) refers to persons other than those mentioned in Clauses (a) and (b). The words 'is employed' are absent in this clause, which would, therefore, apply to a person who had ceased to be a public servant though he was so at the time of the commission of the offence. Clause (c) cannot be construed in this way. The expressions 'in the case of a person' and 'in the case of any other person' must refer to a public servant having regard to the first paragraph of the sub-section. Clause (a) and (b), therefore, would cover the case of a public servant who is employed in connection with the affairs of the Union or a State and is not removable from his office save by or with the sanction of the Central Government or the State Government and Clause (c) would cover the case of any other public servant whom a competent authority could remove from his office. The more important words in Clause (c) are 'of the authority competent to remove him from his office'. A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority. Section 2 of the Act states that a public servant for the purpose of the Act means a public servant as defined in Section 21 of the Indian Penal Code under Clause (c), therefore, any one who is a public servant at the time a Court was asked to take cognizance, but does not come within the description of a public servant under Clause (a) and (b), is accused of an offence committed by him as a public servant as specified in Section 6 would be entitled to rely on the provisions of that section and object to the taking of cognizance without a previous sanction. To read Clause (c) in the way suggested on behalf of the appellants would be to give a meaning to this clause which is not justified by the words employed therein. It was further suggested that the provisions of Sub-section (2) of Section 6 indicate that it was the status of the accused at the time of the commission of the offence which was relevant rather than his status at the time a Court was asked to take cognizance. This sub-section was inserted into the Act by the Prevention of Corruption (Second Amendment) Act, 1952, and it purported to finally settle any doubts which may arise as to which authority should grant the sanction in the case of a public servant who had committed an offence mentioned in Section 6(1 and who at the time the Court was asked to take cognizance is still a public servant. For example, it is not difficult to imagine cases where a public servant employed by a State Government is subsequently employed by the Central Government and a question arises as to which of the two Governments is to grant the sanction for his prosecution. This sub-section resolves the difficulty by directing that where a doubt arises, the authority, which was to grant the sanction, was the one, which was competent to remove him from his office at the time of the commission of the offence. If the provisions of Sub-section (1) bear the construction which we place upon them, there is nothing in Sub-section (2) which is in conflict with that construction. Besides, there is nothing in the language of Sub-section (2) which carries the meaning suggested on behalf of the appellants or which assists us in construing the provisions of Sub-section (1). We cannot construe the words 'is employed' and 'is not removable' in the Clause (a) and (b) and 'competent to remove him from his office' in Clause (c) as 'was employed' and 'was not removable' and 'would have been competent to remove him from his office'. To do so would be to substitute our own words for the words of the statute as contained in these clause.'
32. Subsequently question of sanction, for prosecution of public servant came up for consideration by the Supreme Court in the case of R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684, a Constitution Bench consisting of five Hon'ble Judges considered the question zraised and answered the same as follows :--
Question No. 1 :--What is the relevant date with reference to which a valid sanction is a pre-requisite for the prosecution of a public servant for offences enumerated in Section 6 of the 1947 Act?
'Existence thus of a valid sanction is a pre-requisite 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 the 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.'
Question No. 2 :--Is M.L.A. a public servant within the meaning of the expression Section 21(12)(a) of the Indian Penal Code?
'A person would be a public servant under Clause (12)(a), if (i) he is in the service of the Government; or (ii) he is in the pay of the Government; or (iii) he is remunerated by fees or commission for the performance of any public duty by the Government.
One can be in the service of the Government and may be paid for the same. One can be in the pay of the Government without being in the service of the Government in the sense of manifesting master-servant or command-obedience relationship.
It is not implicit in the expression in the pay of that there ought to exist a master-servant relationship between payer and payee.
However, it is unquestionable that he is not performing any public duty either directed by the Government or for the Government, He no doubt performs public duties cast on him by the Constitution and his electorate. He thus discharges constitutional' functions for which he is remunerated by fees under the Constitution and not by the Executive.
Having meticulously examined the submission from diverse angles as presented to us, it appears that M.L.A. is not a public servant within the meaning of the expression Clause (12)(a), Clause (3) and Clause (7) of Section 21, IPC.'
Question No. 3 :--If the accused holds plurality of offices occupying each of which makes him a public servant, is sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him necessary and if any one of the competent authorities fails or declines to grant sanction, is the Court precluded or prohibited from taking cognizance of the offence with which the public servant is charged?
'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 us. 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 it 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. Some one interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisage a situation wherein a person may holds dozen different offices, each one clothing him with the status of a public servant under Section 21, IPC and even if he had 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 the Court was called upon to take cognizance, yet on this assumption, sanction of 11 different 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 is contrary to all canons of construction and leads to an absurd end 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 rogue's charter. See Devis and Sons Ltd. v. Atkins, 1977 ICR 662.'
33. Another question that cropped up in R.S. Nayak (supra) was--'Is it implicit in Section 6 of the 1947 Act that sanction of that competent authority alone is necessary, which is entitled to remove the public servant from the office which is alleged to have been abused or misused for corrupt motives? This question was answered by the Supreme Court in the manner as follows :--
'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.
In the complaint filed against the accused it has been repeatedly alleged that the accused as Chief Minister of Maharashtra State accepted gratification other than legal remuneration from various sources and thus committed various offences set out in the complaint. Nowhere, not even by a whisper, it is alleged that the accused has misused or abused for corrupt motives his office as M.L.A. Therefore, it is crystal clear that the complaint filed against the accused charged him with criminal abuse or misuse of only his office as Chief Minister. By the time, the Court was called upon to take cognizance of the offences, so alleged in the complaint, the accused had ceased to hold the office of the Chief Minister.'
34. In the case of P.V. Narsimha Rao v. The State, (1998)4 SCC 626 a Constitution Bench consisting of five Judges were concerned with the 1988 Act and with many questions. Two of those questions were (a) whether members of the Parliament are public servants; and (b) who is authority to accord sanction for prosecution of the members of the Parliament. All the five Hon'ble Judges by interpreting the meaning of 'public servant' as mentioned in Section 2(e)(viii) and the word 'public duty' as mentioned in Section 2(b) of the P.C. Act, 1988 held that the members of the Parliament are public servants. Two Hon'ble Judges concluded that the members of Parliament are public servants liable to be prosecuted for the offence under the P.C. Act, 1988 but they cannot be prosecuted for the offence under Sections 7, 10, 11, 13 and 15 thereof because of want of authority competent to grant sanction therefor and the Hon'ble Judges hoped that the Parliament will address itself to the task of removing the lacuna with the expedition.
35. However, the majority view expressed by the three Hon'ble Judges in P.V. Narsimha Rao (supra) is as under :
'Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the Court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a Member of Parliament in a criminal Court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.
Though I respectfully concur with the findings of Mr. Justice Agrawal and agree with the reasoning for such findings that (1) a Member of Parliament is a public servant under Section 2(e) of the Prevention of Corruption Act, 1988 and (2) since there is no authority competent to grant sanction for the prosecution of a Member of Parliament under Section 19(1) of the Prevention of Corruption Act, 1988, the Court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 12 and 15 of 1988 Act against a Member of Parliament in a criminal Court, the prosecuting agency shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.'
36. The aforementioned conclusion of the majority of the Hon'ble Judges for the reasons indicated therein is also applicable to the Members of the Legislative Assembly. Therefore, the law stands settled that a Member of Legislative Assembly is a public servant. It is also settled that against; such public servant the Court can take cognizance without the sanction, but it is the duty of the prosecuting Agency before filing a charge; sheet in respect of the offences punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a Member of the Legislative Assembly in a criminal Court to obtain permission of the Speaker of the Legislative Assembly.
37. From the discussion of the decisions of R.S. Nayak (supra) and P.V. Narsimha Rao (supra) the following principles emerge. In the case of R.S. Nayak (supra) the Court was concerned with the provisions of the P.C. Act, 1947 and it was held that M.L.A. is not a public servant. In the case of P.V. Narsimha Rao (supra) the Court was concerned with the P.C. Act, 1988 and taking into consideration the meaning of public servant as given in Section 2(c)(viii) and interpreting the meaning of 'public duty' as given in Section 2(b) of the Act, 1988 held that the Members of the Parliament/Legislative Body of the State public servants but they cannot be prosecuted for the offences under Sections 7, 10, 11, 13 and 15 of the P.C. Act, 1988 because of want of authority competent to grant sanction therefore. However, it was held that since there is no authority competent to remove a Member of Parliament/ Member of the Legislative Assembly and to grant sanction for prosecution under Section 19(1) of the Prevention of Corruption Act, 1988 the Court can take cognizance of the offence mentioned in Section 19(1) in absence of sanction but till the provision is made by the Parliament in that regard the prosecuting agency before filing charge-sheet can obtain permission of the Chairman/ Speaker.
38. In the case of R.S. Nayak (supra) it was held that in case of public servant holding the plurality of offices; the sanction of all the competent authorities of different public offices are not required, only sanction of competent authority having power of removal of such public servant at the time of commission of the offences sanction of such competent authority is required. The aforesaid declaration of law has not been touched/overruled in the case of P.V. Narsimha Rao (supra).
39. In P.V. Narsimha Rao (supra) the Supreme Court was concerned with Members of the Parliament. They held that they are public servants and discharge public duties. They also held that they required protection from vexatious proceedings. They found that there is no Authority competent to grant sanction to prosecute a Member of Parliament. In such a situation, they could not say that in absence of a prior sanction the Court will not be competent to take cognizance, but at the same time directed the Prosecution Agency to obtain permission of the Speaker, with the sole object of preventing harassment of a Member of the Parliament when discharging his duties as such member. Therefore, if a Member of Legislative Assembly is to be prosecuted for offences committed by him in his capacity as a Member of Legislative Assembly it is obligatory on the part of the prosecution Agency to obtain permission of the Speaker before filing the charge-sheet, but it did not say that if such Member while discharging his duty as public servant in different capacity not as M.P./M.L.A. committed an offence punishable under the 1988 Act still it would be necessary for the prosecuting agency to take permission of the Speaker nor did it say that pronouncement of Supreme Court in the case of R.S. Nayak (supra) is wrong.
40. Learned counsel for the petitioners, however, stated that during the check period Sri Prasad was holding different offices and in any event at least two offices i.e. Member of the Legislative Assembly and the Chief Minister and at the time of filing charge-sheet Sri Prasad was holding of office of the Member of the Legislative Assembly and as such it was incumbent upon the prosecuting agency to obtain permission of the Speaker before filing the charge-sheet. It was submitted by the learned counsel appearing on behalf of the petitioners that a look at Clauses (a), (b), (c) and (d) of Sub-section (1) of Section 13 of the 1988 Act would show that the offences described therein are relatable to an office, whereas the offence enumerated in Clause (c) of Section (1) of Section 13 is relatable to a public servant in possession of disproportionate assets. It was, thus, submitted that in order to put home the charges under Section 13(1)(c) it is required to show that the public servant at any time during the period of his office was in possession of disproportionate assets. It was contended that it is not material for the purpose of an offence under Section 13(1)(e) to misuse office but it is enough to show that during the period of his office he was having disproportionate assets. In this connection learned counsel drew our attention to the charge framed by the learned Special Judge, which is as under :--
'Sudhansu Kumar Lal, Special Judge CBI Patna hereby charges you :--
Lalu Prasad as follows :--
That you being a public servant, while functioning as Chief Minister of Bihar at Patna and other places during the period between 10.3.1990 and 31.3.1997 acquired assets which were disproportionate to your known sources of income and on 31st day of March, 1997, you had been in possession of pecuniary resources of properties in your name and in the name of your wife Smt. Rabri Devi, daughters Ms. Misha Bharti, Ms. Chandra Kumari, Ms. Rohini Acharya, Ms. Ragni Kumari, Ms. Hema Yadav, Ms. Dhannu, Ms. Raj Lakshmi and sons Sri Tej Pratap @ Tej Pratap Yadav @Tej Pratap Singh and Tarun Kumar @ Tarun Kumar Yadav @ Tajaswa Yadav to extent of Rs. 46,26,826.87/-(detailed statement is enclosed separately as Annexure A) which you could not satisfactorily account for and thereby committed the offence specified in Section 13(1)(e) of the P.C. Act, 1988 punishable under Section 13(2) of that Act and within cognizance of this Court.
And I hereby direct that you be tried on the said charge.
The charges were read over and explained to the accused person who pleaded not guilty and claimed to be tried.'
41. I am unable to accept this contention for two reasons, namely, (i) in order to put home the charge, under Section 13(1)(e) it has to be shown that the accused at the relevant time, was a public servant, and was in possession of disproportionate assets and the section itself clearly spells out that the accused should, at the relevant time, be holding a public office; and (ii) the charge as framed clearly depicts that Sri Prasad when holding the post of Chief Minister during the period between 10th March, 1990 and 31st March, 1997 was in possession of disproportionate assets and not that he was holding disproportionate assets when he was only a Member of Legislative Assembly. It may be true that during the period between 29th March, 1995--3rd April, 1995 Sri Prasad was not the Chief Minister but was only a member of Legislative Assembly but then the charge does not say that while Sri Prasad was a member of Legislative Assembly, by amassed disproportionate assets.
42. It was next contended by the learned counsel for the petitioners that in order to become a Chief Minister one is required to become a member of Legislative Assembly and if he is not a member of Legislative Assembly then he is required to become a member of, Legislative Assembly within a period of six months from the date he assumes the charge of Chief Minister, if a person ceases to be a member of Legislative Assembly he automatically ceases to be the Chief Minister. It was, thus, contended that being a Chief Minister is dependent upon being a member of the Legislative Assembly and as such it was incumbent to have the permission of the Speaker to prosecute Sri Prasad.
43. We do not accept this contention again for two reasons, namely, (i) it is now not in dispute by reason of various judgments rendered by the Supreme Court that a Minister or a Chief Minister can be removed by the Governor and at the same time there is a definite finding by the Supreme Court that there is no authority competent to remove a member of the Legislative Assembly and though to safeguard harassment of members of Legislative Assembly, the Supreme Court has asked the prosecution to obtain prior permission of the Speaker before filing a charge-sheet against a member of Legislative Assembly when offences are said to have been committed by him as such member, lifted the sting of Section 19(1) of the 1988 Act by permitting the Court to take cognizance without a sanction to prosecute and that clearly depicts that permission of the Speaker is necessary when the member of Legislative Assembly is being charge-sheeted for having committed offences under the 1988 Act while discharging the duties of such member; and (ii) that itself makes it clear that the Speaker is not the competent authority to remove a member of the Legislative Assembly and, accordingly, the proposition that by removal of the dominant office the servient office also comes to an end is not applicable vis-a-vis a member of Legislative Assembly, who is also a Chief Minister.
44. In the case of R.S. Nayak (supra) Constitution Bench declared the law that if public servant while holding the public office committed offence punishable under the P.C. Act; and thereupon ceased to hold that post and occupied yet another public post if he is sought to be prosecuted for such office no sanction of authority is required so much so from the competent authority to remove such public servant from subsequent public office.
45. It would also be pertinent to mention herein that the counsel for the parties disclosed that the trial has been taken up and the evidence of the parties has been closed and argument is going on.
46. The learned counsel for the petitioners did not argue any other point raised by the petitioners either before the Special Judge as mentioned above, or repeated in the applications under consideration.
47. Thus, on consideration as discussed above, I find no merit in any of the applications. Thus, both the applications are dismissed. Petition dismissed.