A.K. Sikri, J.
1. Respondent herein has filed a complaint against the petitioner herein under Sections 500, 501 and 502 of the Indian Penal Code. Apart from the petitioner, four other persons are arraigned as accused persons. The provisions under which the complaint is filed would clearly suggest that the respondent is aggrieved at certain remarks of the petitioner, which, according to the respondent are defamatory in nature and thereforee, the respondent wants the accused persons to be tried under the aforesaid provisions of the IPC. The learned MM, after recording the pre-summoning evidence, took cognizance of the complaint and issued notice to the accused persons.
2. The petitioner was the Leader of Opposition in Bihar Assembly when he had made the alleged offending remarks. He feels that this position affords him the requisite protection under the law and no prosecution can be launched against him without obtaining prior sanction of the competent authority under Section 197 Cr.P.C. thereforee, on receipt of the notice the petitioner filed an application under Sections 190/197/199/200 and 203 of the Code of Criminal Procedure for dismissal of the complaint primarily on the ground that before proceeding against the petitioner, requisite sanction was required, which was not obtained by the respondent herein. This application was dismissed by the learned Metropolitan Magistrate vide order dated 18.9.2006. Feeling aggrieved against that order, the petitioner preferred criminal revision before the Court of Additional Sessions Judge, which met the same fate as the learned ASJ dismissed the said revision petition on 9.10.2006. Still not satisfied, present petition under Section 482 of the Cr.P.C. is filed challenging the aforesaid orders of the learned MM and ASJ respectively. thereforee, the primary question with which we are concerned in this petition is as to whether prior sanction for instituting proceedings against the petitioner was required or not.
3. Before coming to this core issue, it is necessary to know as to under what circumstances such a plea is taken by the petitioner. To ascertain this, relevant and necessary facts need to be traversed. thereforee, these facts are stated hereinbelow in the first instance.
4. The complainant claims that he is currently the Chairman, Centre for Policy Alternatives, which is a Society registered under the Societies Registration Act, 1860. He is also a former Advisor to the Finance Minister, a post carrying the rank of Secretary to the Government of India. He is a qualified economic and policy analyst acknowledged for his competence and integrity in this country and abroad. He has obtained his Masters Degree in Public Administration from Harvard University where he also held prestigious Edward S. Mason Fellowship. He has taught at premier institutes like Harvard and Administration Staff College of India. He is a columnist, writer and commentator on public affairs. He also states that his writings and opinions are quoted with deference in publications and by experts and he is regarded for the excellence of his work as also for his unimpeachable integrity. The respondent authored a report titled 'Economic Strangulation of Bihar' under the auspices of the Centre for Policy Alternatives as its third report. In this report he purportedly analysed economic assistance to the State of Bihar and pointed out the inequality in this on the basis of some official statistics. At that time, the petitioner was the Leader of Opposition in the Bihar Legislative Assembly. On 18.2.2004, the petitioner called a Press conference at Patna in which he circulated a written Press Statement to the several members of the media present at the said Press conference for the purpose of publication. By the said statement he allegedly defamed the respondent by calling him corrupt and asserting that the respondent had been removed from the Government on serious charges of corruption and trying to oblige a business house to the tune of Rs.10 crores. He also verbally endorsed the remarks made in the Press Statement. He also asserted that the respondent had attempted to get political favors from former Prime Minister Chandra Shekhar and current Chief Minister of Andhra Pradesh Chandra Babu Naidu and having failed in this attempt, was now distorting facts and figures in favor of the Bihar Government in the hope of a Rajya Sabha seat from Bihar in the elections slated to be held in July 2004 Result of the Press conference was that newspapers within and outside Bihar carried those remarks. On 21.2.2004, 'The Pioneer' carried a news item entitled ''Development' to decide Poll results-Modi'. The said news item appearing states the following:
Mr. Modi also raised his finger at the intellectual capability and personal ambitions of Mohan Guruswamy, the 'economist' working for RJD Chief Laloo Prasad Yadav. 'It is the same Guruswamy who was sacked from the post of economic advisor to the then Finance Minister Mr. Yashwant Sihna, for allegedly making efforts to extend financial help to the tune of Rs.10,000 crores to a particular business house' charged Mr. Modi. 'The issue had even shook the Parliament and was discussed for several days' he informed.
The Bihar opposition leader also declared that Guruswamy after failing to pursue other political parties for his Rajya Sabha berth, had approached Laloo Yadav for the same in July. 'Now by twisting the facts and figures Guruswamy wants to ensure his seat from RJD'.
The complainant perceived those remarks as attack on his integrity which had lowered down his image and discredited him and his work in the eyes of various persons, including public at large.
5. In these circumstances, the respondent filed the complaint making aforesaid and other averments. Apart from impleading the petitioner as accused No. 1, accused No. 2 is the publisher of the newspaper-'The Pioneer', accused No. 3 is the Editor, accused No. 4 is the Executive Editor and accused No. 5 is the Correspondent of the said newspaper.
6. In the application filed by the petitioner under Section 190/197/199/200 and 203 of the Cr.P.C. for rejection of the complaint, the petitioner, inter alia, pleaded that the acts complained of in the complaint pertain to acts allegedly committed by the petitioner as the Leader of the Opposition in the Bihar Legislative Assembly. thereforee, he was a 'public servant', more so as he was drawing his salary and allowances from the Government of Bihar in his capacity as the Leader of Opposition, which was regulated by the 'Bihar Legislature (Leader of Opposition) Salary and Allowances Act, 1977.' It was also asserted that the Leader of Opposition is paid salary for the public work done or the public duty performed by him and thereforee, the petitioner was a 'public servant' within the meaning of Section 21(12) of the IPC. Thus, he enjoyed the protection of Section 197 of the Cr.P.C. and there could not have been any prosecution against him without obtaining proper sanction under the said provision, which was a condition precedent and mandatory. In order to assert that the statements in question were made in discharge of his duty, the petitioner stated in this application that the statements imputed would show that they had been made by him in discharge of his public duty as at that time, the campaign for the Bihar Assembly elections was on. The respondent had made a spirited defense of the then Government and it was necessary for the Leader of the Opposition to rebut the allegations. In this application, the petitioner also stated that the context in which the statements were made would not amount to defamation. However, that is not an aspect with which we are concerned in the present petition.
7. The learned MM, while dismissing this application vide his order dated 18.9.2006, took note of the aforesaid arguments and the judgments cited by the petitioner in support, but was not influenced by these submissions as he felt that at that stage it would not be appropriate to hold as to whether the petitioner was a public servant or not or the alleged acts committed by him were in discharge of his official duty or not. He held that the petitioner could produce the relevant and material documents during evidence for the purpose of considering whether the necessary ingredients to attract Section 197 Cr.P.C. had been established or not. Thus, the thrust of his order would show that according to the learned MM, it was a matter of evidence and only after recording of the evidence, it could be decided as to whether the petitioner was a public servant and further whether the acts complained of were committed by him while acting or purporting to act in discharge of his duties inasmuch as Section 197 Cr.P.C. would not get attracted only on the ground that the petitioner was public servant, as it was also to be proved that the act was in discharge of his public duties.
8. The learned ASJ while upholding the order of the learned MM and dismissing the revision petition, made the following observations in the process:
5. It may be noted that in some cases there is clear cut demarcation as to whether the act was committed in discharge of official duty or not. Such case was being decided by the Supreme Court in the case cited by Ld. Counsel for revisionist. However, there are cases, as the present, where this question cannot be decided unless the appropriate evidence is brought on record. Prima facie the function of Leader of opposition is to oppose the Government of the day in and outside legislature. If such leaders defame a person inside the Legislature, he is protected by the Constitution of India but if he defames a person outside the Legislature, it would become a question of trial as to whether he is doing in capacity of Leader of Opposition or as a member of his political party. The trial court will also have to see as to whether the Leader of Opposition, in discharge of his official duties, can go beyond criticizing the Government and whether he can go to the extent of defaming a person so as to enter the forbidden territory of Indian Penal Code. The revisionist in his application before Ld. Metropolitan Magistrate in para 21 of this application has stated that statement in question was made by him in discharge of his official duties at the time campaign for Bihar Assembly Election was on. In view of such averments it is clear that the court will have to decide as to whether the revisionist while making the defamatory statement was acting as a Leader of Opposition or as a member of his political party. In this paragraph it is also written that the complainant had made a very spirited defense of the Government and it was necessary for the Leader of Opposition to rebut the allegations. I am again of the opinion that this is a matter of trial to see as to whether the Leader of Opposition is entitled to criticize the Government or to defame an individual.
6. Although it will not be a difficult proposition for the trial court to decide whether Leader of Opposition is a public servant or not, it being purely a legal question. It is not possible to give any finding at the stage to give opinion as to whether the act of the revisionist was in discharge of his official duties or whether it was beyond it. Accordingly, I do not find any reason to set aside the order of the trial court. Revision petition is accordingly dismissed.
9. Thus, according to the learned ASJ, though the question as to whether the Leader of the Opposition is a public servant or not could be decided as it was a pure legal question, the other related and equally important question, namely, whether the act of the petitioner was in discharge of his official duties or whether it was beyond it, had to be decided by means of evidence.
10. The challenge in the aforesaid petition to the orders of the courts below is primarily on the ground that the issue as to whether the petitioner is a public servant or not should have been sidetracked and decision thereon was not to be deferred. It is stressed that as per the law laid down by the Supreme Court, such a question has to be decided at the threshold of the proceedings before proceeding further. In support, judgment of the Supreme Court in the case of Ashok Sahu v. Gokul Saikia and Anr. is referred to wherein the Apex Court, inter alia, observed as under:
6. We agree that the want of sanction under Section 197 of Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings. See: Hori Ram Singh v. Crown and Sarjod Prasad v. King Emperor . Regard being had to these principles, we are of the opinion that it would be proper that the Magistrate considers the question of necessity of sanction after recording some evidence with opportunity to the parties. The court then will be in a better position to come to a conclusion whether on the facts so established prima facie, sanction under Section 197 is necessary or not.
7. We, thereforee, allow this appeal and in reversal of the judgment of the High Court, we direct the learned Magistrate to take some evidence and consider the question of sanction before framing a charge.
11. The learned Counsel for the petitioner also referred to the judgment of the Supreme Court in Thiru V. Thanigachalam v. State of Tamil Nadu : 1976CriLJ1756 to contend that question of sanction under Section 190 of Cr.P.C. was a mixed question of law and fact. Reference was also made to another judgment of the Supreme Court in the case of R. Balakrishna Pillai v. State of Kerala and Anr. : AIR1996SC901 .
12. It is not in dispute that in all the aforesaid cases the persons against whom prosecution were launched were admittedly public servants. The question of obtaining sanction arose in another context, namely, whether the offence alleged to have been committed was the one while acting or purporting to act in discharge of their official duty. In the present case, however, there is a dispute between the parties as to whether the petitioner, who was the Leader of Opposition at the relevant time, could be treated as public servant or not. Even the learned ASJ in his impugned order opined that such a question could be decided as it was a pure legal question. Evidence was required only on the other aspect, namely, whether the act of the petitioner was in discharge of his official duties or it was beyond it. To determine this issue, admittedly, evidence is required. thereforee, when this petition came up for hearing, counsel for the parties agreed that the question as to whether Leader of Opposition would be a public servant or not be decided by this Court itself. The learned Counsel for both the parties made their detailed submissions on this issue and other incidental issues as would be commented upon in the course of further deliberations.
13. Mr. Arun Jaitley, learned senior counsel appearing for the petitioner, submitted that in a democratic set up, Leader of Opposition plays an important role. He is the official spokesman of the minority or minorities in the House and to that end he was supposed to zealously watch any encroachment on their rights. His task was of sufficiently great public importance because he had to maintain a team 'Shadow Cabinet' ready to take over administration and form a Government if his party gets majority at an election or if the Government resigns or is defeated. In performing his duties and obligations, the Leader of Opposition was supposed to take into account not only what he is today but what he hopes to be tomorrow. He has to be critical of the Government in power in respect of its functioning. He is, thus, to criticise, to find fault, and at the same time to develop his own proposals and policies without the power to implement them. thereforee, he has a right to criticise the Government vehemently on the Floor of the House and outside in his country, though when he is abroad he should eschew party politics. Referring to the 4th Edition of the book titled 'Practice and Procedure of Parliament' by Shri M.N. Kaul and Shri S.L. Shakdher, revised by Dr. Subhash C. Kashyap, he pointed out that the authors of the said book had defined the position of the Leader of Opposition in the Parliament in the following words:
The process of parliamentary government is based on mutual forbearance between the Opposition and the Government. If the Leader of the Opposition lets the Prime Minister govern, he in turn is permitted to oppose. On certain matters, such as foreign relations, defense policy, etc., the Prime Minister may at time consult the Leader of the Opposition before making a commitment. And in times of grave national crisis, the Leader of the Opposition usually underlines the unity of the nation on a particular issue by openly identifying himself with the Government policy.
The Prime Minister and the Leader of the Opposition try to meet each other's convenience as far as possible, consistent with their basic policies. While eschewing obstructionism as such, the Leader of the Opposition, if he feels that the Government is trying to slide over an important issue and shunning parliamentary criticism, can rightfully demand debate on that issue.
14. Vigilance was, thus, the hallmark of the Leader of the Opposition. He had a very special responsibility to the Parliament and to the nation while he remains a critic. He must in a sense be a partner and even a buttress to the Government to which he is opposed at the moments of danger, specially of foreign danger, and also in matters affecting the security and safety of the nation. He was, thus, to discharge dual responsibility, with fidelity.
15. Learned Counsel submitted that same position would apply in respect of Leader of Opposition in State Legislatures. Because of this importance attached to the functioning of Leader of Opposition, statutory recognition was now accorded to them and they were given salary and certain other facilities and amenities under the Bihar Legislature (Leader of Opposition Salary and Allowances) Act, 1977. For the State of Bihar, same provision was made in the Bihar Legislature Leader of Opposition (Salary and Allowances) Act, 1977. It was his submission that the payment of salary and allowances to all the MLAs was governed by the Bihar Legislature (Members' Salaries, Allowances and Pension) Act, 1960, but separate enactment was made for payment of salary and allowances to the Leader of Opposition. Salary, under this enactment, was paid by the Government of Bihar. As per Section 3 of this Act, even the income-tax was paid by the State Government. Leader of Opposition was also provided a furnished accommodation 'on such scale and subject to such monetary limits at the State Government' by rules determines (Section 4). Section 5 provided that the Leader of Opposition was further entitled to the traveling and daily allowances at such rates and subject to such conditions as the State Government may by rules determine. He was also provided an official car. Thus, salary and allowances of the petitioner was determined by the statute.
16. Learned Counsel also pointed out that the Leader of Opposition acquires his office on recognition as such by the Speaker of the Bihar Legislative Council. This was so laid down under Section 2 of the Bihar Act 1 of 1978. Under these circumstances, it was submitted that Leader of Opposition, like the petitioner, was a 'public servant' within the meaning of Section 21(12) of the Indian Penal Code inasmuch as the petitioner, as Leader of Opposition, was drawing salary from the Government funds; the salary was paid to him for the public work done and the public duty performed by him; and he acquired the status of Leader of the Opposition on being so recognized.
17. The learned Counsel attempted to chronicle the advancement in the concept of 'public servant' with the passage of time. He submitted that there were two categories of public servants recognised in law: (i) one was under Prevention of Corruption Act, 1947, which provided that the public servant shall be same as defined in Section 21 of the IPC. Section 21 IPC, as originally enacted, contained 10 categories of public servants. The eleventh category was added in the year 1920 and twelfth in the year 1964. When the Prevention of Corruption Act, 1947 was repealed by the enactment of Prevention of Corruption Act, 1988, Section 2(c), which defines public servant, contains the 12 categories. thereforee, learned Counsel argued that from 1988, with the enactment of the Act of 1988, definition of public servant in IPC was different from that appearing in the Prevention of Corruption Act. Submission of the learned Counsel was that the manner in which scope of public servant has been broadened and protection given to them from unnecessary prosecution by prescribing that prior sanction under Section 197 Cr.P.C. should be obtained before their prosecution is to be kept in mind. He referred to various judgments of the Apex Court in an attempt to develop this hypothesis. If that objective is to be kept in the forefront, the Leader of Opposition should also be brought under the protected umbrella by treating him as 'public servant'.
18. The arguments of Mr. Jaitley are attractive and need serious consideration. However, before I take this adventuressespath, the respondent has put a caveat. She has submitted that no such exercise is needed or to be undertaken inasmuch as, most of the aspects argued by the learned Counsel for the petitioner stand concluded by one or the other pronouncement of the Supreme Court. She made detailed submissions on this aspect and referred to various judgments of the Supreme Court to buttress this submission of hers. Whether she has been able to successfully demonstrate this needs to be adverted in the first instance. While discussing the aspect, I shall refer to copious submissions made by both the counsel.
19. The first aspect, which needs consideration, is as to whether the petitioner shall fit into the description of 'public servant' within the meaning of Section 21(12)(a) of the IPC, as it was a common case that in first eleven clauses of Section 21, which define different categories of persons as public servant, would not cover the petitioner. However, some other clauses of Section 21 of the IPC are also extracted below, which would be relevant for our discussion:
21. The words 'public servant' denotes a person falling under any of the descriptions hereinafter following, namely: Third.-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
Seventh.-Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
Twelfth.-Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956.
Explanation 1.-Persons falling under any of the above description are public servants, whether appointed by the Government or not.
Section 17 defines the expression 'Government' to denote the Central Government or the Government of a State. Section 14 defines the expression 'servant of Government' to denote any officer or servant continued, appointed or employed in India by or under the authority of Government. Section 19 defines the word 'Judge' as under:
The word 'Judge' denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment or a judgment which, if not appealed against, would be definitive, or who is one of a body of persons which body of persons is empowered by law to give such a judgment.Section 7 provides that 'every expression which is explained in any part of the Code (IPC), is used in every part of this Code in conformity with the Explanationn.'
20. Clause (a) of sub-section (12) of Section 21 makes a person 'public servant' if he is: (i) in the service of the Government; or (ii) in the pay of the Government; or (iii) remunerated by fees or commission for the performance of any public duty by the Government.
21. It is on this premise the argument of the petitioner is that the petitioner as the Leader of the Opposition was receiving remuneration by the Government and was also discharging public duty.
22. This very clause has come up for interpretation before the Supreme Court on several occasions. The first case, which requires attention is the Constitution Bench judgment of the Supreme Court in R.S. Nayak v. A.R. Antulay : 1984CriLJ613 . That was a case where it was alleged that a former Chief Minister had committed offences under Sections 161 and 165 IPC and Section 5 of the Prevention of Corruption Act, 1947 (in short the 'PC Act') while holding the office of Chief Minister. Question arose as to whether sanction for prosecution of such a person was required, who had ceased to hold the office of Chief Minister, though he was still a sitting MLA. The Constitution Bench answered the question in the negative. The Court was of the opinion that the accused must continue to be a public servant on the date of taking cognizance of the offence by the Court and not on the date of commission of the offence. It was, thus, not disputed that as Chief Minister is a public servant, but since he no more remained Chief Minister on the date cognizance of offence was taken by the Court, sanction under Section 6 of the PC Act, 1947 or under Section 197 Cr.P.C. was not required. It is not necessary for us to take note of detailed reasoning give by the Constitution Bench on this aspect. We are concerned with alternate argument raised therein, namely, whether MLA was public servant, as the respondent in the said case was still an MLA.
23. The Constitution Bench expressly excluded MLAs from the category of public servant under the IPC, inter alia, on the ground that they are not paid by the Executive Government for any duty at its behest. The Court did not buy the argument that MLAs have other obligations under the Constitution or to electorate which could make their duty within the meaning of Section 21(12) IPC. The argument that MLAs get remuneration also did not cut ice with the Constitution Bench, which opined that remuneration within the meaning of Section 21(12)(a) IPC must be the remuneration by the Executive Government for duties carried out at its behest and direction and the MLAs get their salary under an Act of the legislature as MPs do under an Act of Parliament. In the process the Court also held that the legislature is not 'Government' within the meaning of Section 20(12) IPC. Payment of salaries to MLAs or even the Ministers, under a law passed and grant voted by the legislature is payment at the legislature's command and not payment by the Executive Government, who may be the disbursing authority. In respect of Ministers, they were held to be public servants not because of the mode of their payment but because they discharge duties prescribed by the State Government's Rules of Business allocated by the Governor to whom they report and, thereforee, they are treated to be in the service of the Government. For this, the Court referred to the earlier Constitution Bench judgment in M. Karunanidhi v. Union of India : 1979CriLJ773 , wherein it was held:
57. Three facts, thereforee, have been proved beyond doubt:
1. That a Minister is appointed or dismissed by the Governor and is, thereforee, subordinate to him whatever be the nature and status of his constitutional functions.
2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him.
3. That the said salary is paid to the Chief Minister or the Minister from the Government funds. It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is co-terminus with his office and is not paid tike other constitutional functionaries such as the President and the Speaker. These facts, thereforee, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, thereforee, a public servant within the meaning of Section 21(12) of the Penal Code.
24. The aforesaid submission of Antulay's ratio finds its voice in the detailed discussion contained in para 29 onward while answering question (d), formulated as under:
(d) Is MLA a public servant within the meaning of expression in Section 21(12)(a) IPC?
25. It is useful to take note of the arguments of the respondent therein on the basis of which, attempt was made to demonstrate that MLA would be a public servant, though unsuccessfully. Following portion of para 30 of the judgment is quoted for this purpose:
30. It was conceded before the learned Special Judge and not retracted before us that the case of the accused does not fall in the first limb, i.e. the accused as MLA could not be said to be in the service of the Government. The contention is that the accused while receiving his salary as MLA under the Maharashtra Legislature Members' Salaries and Allowances Act, 1956 was and is in the pay of the Government. The second limb of the submission was that even if the pay which the accused received as MLA under the relevant Act would not make the accused a person in the pay of the Government which the accused would receive for performance of public duty from the Government. It was contended on behalf of the complainant that the expression 'in the pay of the Government, would, in the context in which the expression is used in Section 21(12)(a), mean unless there is relationship of master and servant and command and obedience between the payer and the payee, mere payment even if styled as pay would not mean that the payee is in the pay of the payer. Proceeding along it was submitted that MLA could not be said to be subject to obedience of any command by the Government, and thereforee, the accused as MLA could not be said to be 'in the pay of the Government.' And as regards the third limb, it was urged that the accused as MLA was not performing any public duty for the performance of which he was remunerated by the Government. Additionally, it was urged that the expression 'Government' in Clause (12)(a) must receive the same meaning assigned to it in Section 17 IPC meaning thereby that it denotes the Central Government or the Government of a State as the context requires. It was urged that in that sense the expression 'Government' in Clause 12(a) would mean 'Executive Government' and it would be adding insult to injury if it can ever be said that MLA is in the pay of the Executive Government or State Government.
26. In para 44 of the said judgment, the Court enumerated three categories of persons, who would be public servants, i.e. (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. It was conceded that an MLA is not in the service of the Government and, thereforee, would not be covered by first category enlisted above. The Court, thus, considered in detail the question as to whether an MLA would be 'in the pay of the Government'. Both the expressions, namely, 'in the pay of' and 'Government' occurring in this category received detailed analysis at the hands of the Constitution Bench. Article 195 of the Constitution provides that 'Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State.....'
27. This is the enabling provision under which various legislatures have enacted laws entitling the Members to receive salaries and allowances. thereforee, it was not disputed that a MLA receives his salary and allowances in his capacity as a MLA. The question was as to whether it would make him a person 'in the pay of the Government'. The Court noted that this expression had received attention by the earlier Constitution Bench of the Supreme Court in M. Karunanidhi (supra) wherein the Court had opined that the Chief Minister would be public servant as comprehended in Clause (a) of sub-section (12) of Section 21. After detailed analysis of M. Karunanidhi's case (supra), the Court concluded that no argument was advanced bearing on the interpretation of the expression 'Government' in the said clause. It was assumed that salary and allowances paid to the Chief Minister are by Government. thereforee, it was necessary to examine as to whether salary and allowances received by the MLA would be covered by the expression 'in the pay of the Government.' According to the Bench, the expression 'Government' denotes either the Central Government or the Government of the State as per Section 17 of the IPC. Since the case related to MLA of a State Legislature, the Court was of the opinion that the issue which needed attention was: 'Whether MLA is in the pay of the Government in the State or is remunerated by the fees for the performance of any public duty by the Government of a State'
28. The Court explained the principle of separation of powers in the three wings of the Government, namely, Executive, Legislature and Judiciary in a democratic set up and under the scheme of Indian Constitution and answered the question by observing that MLA was not in the pay of State Government because Legislature of a State cannot be comprehended in the expression 'State Government.' This conclusion is contained in para 56 of the judgment, which is reproduced below:
56. To the same effect is a decision of the J and K High Court in the case of Bakshi Ghulam Mohd. v. G.M. Sadiq and Ors. A.I.R. 1968 J&K; 98 where Anant Singh, J. observed as follows (at p. 102):
A Minister of a State is paid from its public exchequer, and he is paid for doing public duty and, in my opinion, a Minister is a 'public officer' within the meaning of Section 80 as defined in Section 2(17)(h) of the Civil Procedure Code.The opinion expressed by the learned Judge is clearly in consonance with the view that we have taken in this case.
29. The detailed analysis of the aforesaid judgment of the Supreme Court was necessary as the arguments before me are on the basis of this judgment. An MLA receives salary and allowances under an enactment. However, the Court was still of the opinion that it would not make him public servant under Section 21(12)(a) IPC, as mere receipt of such salary and allowances would not suffice and would not make him a person who is 'in the pay of the Government.' Would the case of a Leader of Opposition be different from that of an MLA merely because he also receives salary and allowances, albeit, under a separate Act. I am of the opinion that having regard to the legislative and constitutional scheme enumerated by the Constitution Bench in Antulay's case (supra), it would not make any such difference so as to treat the Leader of Opposition in a different and distinct category as no such function performed by the petitioner as Leader of Opposition, on the basis of which he could be treated as receiving such pay and allowance from the Government inasmuch as, the expression 'Government' occurring in Clause 12(a) of Section 21 IPC was treated as Executive Government, which would include Legislature, as Leader of Opposition the petitioner remained a Member of Legislature only.
30. No doubt, the Ministers in the Government, including Chief Minister, who belongs to majority group and are also MLAs are treated as public servant. However, that is not because of the reason that such a person is in receipt of any salary or remuneration but because they discharge duties prescribed by the State Government's Rules of Business allocated by the Governor to whom they report and in this manner, they are treated to be in the service of the Government. This principle cannot be extended to the Leader of Opposition. My conclusion on this aspect, is, thereforee, as follows:
31. The petitioner as Leader of Opposition was not remunerated by the Executive Government. He was not getting pay and allowance for any public duty which was directed by the Government or for the Government. Mode of payment of salary and allowances to him is similar to those of MLAs, though under separate enactments and mode of payment to him by different enactment does not partake a character different from any other MLA, as he was not performing the duties according to the State Governments regulations or at its behest. No doubt, role of a Leader of Opposition in a democratic set up is immensely important but that is the role which he plays as the Leader of Opposition like other MLAs in the opposition group and in view of the said role, he is not an extended arm of the 'Executive' and, thereforee, cannot be covered under Clause 12(a) of Section 21 IPC. If he is to be treated as 'public servant' so as to give him the requisite protection, necessity would be to carve out a category in Section 21 IPC by amending that provision. That is the function of the Legislature. Merely because he discharges public duties or has important role to pay in the parliamentary system of democracy, would not automatically make him 'public servant' in the absence of any such provision in Section 21 IPC.
32. The matter can be looked into from another angle with the following poser: 'Whether a Leader of Opposition is removable only by or with the sanction of the Government so as to necessitate obtaining prior approval under Section 197 Cr.P.C.'
33. Section 197 Cr.P.C. is couched in the following language:
197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or 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;
(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.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression ``Central Government'` occurring therein, the expression ``State Government'` were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
34. It is settled proposition of law that all those who are public servants within the definition of Section 21 IPC are not entitled to the cover of Section 197 Cr.P.C. Only Judges, Magistrates and public servants not removable save by or with the sanction of the Government are so covered. Even if we assume that the petitioner was a 'public servant', was he removable only by or with the sanction of the Government while acting as Leader of Opposition? Though successive legislative amendments have been made in the IPC as well as anti-corruption laws, no sanction was visualized for any public servant not removable by the Central or the State Government.
35. I may also point out at this stage that the judgment in Antulay's case (supra) was followed by the Supreme Court in Ramesh Balkrishna Kulkarni v. State of Maharashtra : 1986CriLJ14 and the Court held: 'A public servant is an authority who must be appointed by Government or a semi governmental body and should be in the pay or salary of the same. Secondly, a public servant is to discharge his duties in accordance with the rules and regulations by the Government.' It may also be necessary to take note of another judgment of the Supreme Court in the case of K. Veeraswami v. Union of India and Ors. : (1992)IILLJ53bSC where the question was as to whether a Judge of the High Court could be prosecuted under the PC Act. In that case the Court was concerned with Clause (3) of Section 21 and not Clause 12. The question of sanction also arose in the context of Section 6 of the PC Act and not Section 197 Cr.P.C. Holding that sanction under Section 6 was a pre-condition, the question which fell for determination was as to who would be the sanctioning authority. The Court opined that it should be the Chief Justice. Thus, when sanction was a pre- condition and sanctioning authority was not specifically mentioned, the Court dealt with this issue to fill this gap. That judgment, though cited by the learned Counsel for the petitioner to advance his case, would not be relevant once the context in which the issue was decided is seen, as examined above. However, what is important for us is that the Supreme Court did not read the requirement of sanction into the law where none existed. It merely identified the authority in the light of an omnibus provision of Section 6(1)(c) of the PC Act, which existed.
36. The PC Act, 1947 was replaced by the Act of 1988. The definition of public servant has been expanded. Another important feature, which needs mention, is that the new Act, 1988 repealed most of Chapter IX IPC. The corruption offences, namely, offences by public servants under Section 161-165 were repealed and specific provision made in the PC Act, 1988. After analysing the scheme of the new Act, it can be stated that there was a complete departure from IPC and PC Act. This distinction was first noticed by this Court in L.K. Advani v. CBI : 66(1997)DLT618 . The Court noted that the objects of two Acts, namely, IPC and PC Act were different and refused to take the IPC definition in view of the definition that was provided by the PC Act, 1988. This view was upheld by the Supreme Court in appeal. Question came up for consideration before the Supreme Court once again in P.V. Narasimha Rao v. CBI : 1998CriLJ2930 . The Court held that for the purpose of Prevention of Corruption Act, 1988, a Member of Parliament would be a 'public servant'. In view of extended definition of 'public servant' therein and with the introduction of Section 2(b), which defines 'public duty'. Section 2(c)(viii) of the PC Act, 1988, covers MPs as well. Thus, a person may be public servant for the purpose of PC Act, 1988 having regard to the aforesaid judgment and the provisions of the Act, but he would not be 'public servant' for the purpose of IPC, i.e. under Section 21 IPC having regard to Antulay's case (supra). This is clear from the following observations of the Supreme Court in P.V. Narasimha Rao's case (supra):
There can be no doubt that the coverage of Section 2(c) of the said Act is far wider than that of Section 21 of the Indian Penal Code. The two provisions have only to be looked at side by side to be sure that more people can now be called public servants for the purposes of the anti-corruption law.....Having regard to the fact that there was no clause in Section 21 of the Indian Penal Code which is comparable to Section 2(c)(viii) of the said Act, the decision in Antulay case is of little assistance in this context.
37. It would also be of advantage to note that in Narasimha Rao's case (supra), the following observations from Veeraswamy's case (supra) were quoted:
In our opinion, if a general power to take cognizance of an office is vested in a court, any prohibition to the exercise of that power, by any provision of law must be confined to the terms of that prohibition.
38. Thus the Supreme Court interpreted the words 'removable by the Government' in Section 197 Cr.P.C. to mean the 'Executive Government' and not even instrumentalities.
This respect for thoughtful limits for sanction under Section 197 Cr.P.C. continued even after PC Act, 1988 came into force and the Court consciously did not extend the protection of this provision to those who may well be covered by the PC Act, 1988 while dealing with Mohd. Hadi Raja v.State of Bihar (1988) 5 SCC 91. The Court in that case refused to read 'State' in place of 'Government' in Section 197 Cr.P.C. as is evident from the following discussion in the said judgment:
24. It is also to be indicated here that in 1973, the concept of instrumentality or agency of State was quite distinct. The interest of the State in such instrumentality or agency was well known. Even then, the legislature in its wisdom did not think it necessary to expressly include the officers of such instrumentality of Government Company for affording protection by way of sanction under Section 197 Cr.P.C.
25. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of 'public servant', they have been declared to be 'public servants' under several special and local acts. If the legislature had intended to include officers of instrumentality or agency for bringing such officers under the protective umbrella of Section 197 Cr.P.C. It would have done so expressly.
26. thereforee, it will not be just and proper to bring such persons within the ambit of Section 197 by liberally construing the provisions of Section 197. Such exercise of liberal construction will not be confined to the permissible limit of interpretation of a statute by a court of law but will amount to legislation by Court.
39. The aforesaid analysis of various judgments of the Supreme Court would answer all the contentions raised by the petitioner against him. The claim of the petitioner that this Court should liberally construe 'public servant' to include the Leader of Opposition cannot be accepted in view of law laid down by the Supreme Court. Reliance by the learned Counsel for the petitioner on the judgment of the Supreme Court in V. Ramaswami (supra) and P.V. Narasimha Rao (supra) on the basis of which he wanted me to be persuaded for the liberal construction, is misplaced. As noted above, in those cases, which were under the provisions of the PC Act, by the definition of 'public servant' contained in the PC Act, it was not in dispute that Judges and MPs were public servants by definition. Law provided for sanction by a competent authority. The question was as to who would be the competent authority in the case of Judges of the High Court and Supreme Court and in case of MPs. The Supreme Court provided such an 'authority', which was not specifically defined. However, while construing the provision in this manner, the Court did not go to the extent of expanding the scope of sanction where none existed in the statute.
40. We are, in the present case, concerned with the provisions of Section 21(12) IPC and in that context, it needs to be examined as to whether the petitioner would be public servant. For this purpose, this provision only is to be considered and we cannot fall back upon the provisions of the PC Act, 1988. The answer is provided by Antulay's case (supra), note whereof has already been taken in greater detail above. Since I am unable to hold that Leader of Opposition in a State Legislature would be a public servant, the requirement of prior sanction does not arise.
41. As noted in the beginning, though consideration of this issue was deferred by the learned MM, which was upheld by the learned ASJ with some observations, with the consent of the parties, this issue has been examined by me as both the parties conceded that it is purely a legal issue and agreed that it should be settled here itself rather than remanding the case to the trial court. The question, thereforee, as to whether the utterances of the petitioner, which has led the complainant to file the complaint under Section 499/500 IPC would be in furtherance of his duties as public servant or not, would not arise for consideration. thereforee, the learned MM shall now proceed with the case on merits. Of course, the petitioner shall have right to take up all the defenses which are available to him, including the defense that the utterances were part of discharge of duties as Leader of Opposition and did not amount to defamation.
42. This petition filed by the petitioner is accordingly dismissed.
43. No costs.