Appadirai Vs. State, Rep. by the Station House Officer, Cid Branch - Court Judgment

Excerpt:
- order1. the petitioner stands accused of offences under section 409, ipc and section 5(2) read with section 5(1)(c) of the prevention of corruption act, 1947 in special c.c. no. 4/90 in the court of the special judge (principal sessions judge) at pondicherry. the petitioner filed a cri. m.p. no. 974 of 1999 before the learned sessions judge to discharge him from the case on the ground that there was no sanction for prosecuting him. the learned special judge dismissed the petition holding that the accused is a public servant and as per the decision reported in 1995 cri lj 963 (kerala) rendered in the case of r. balakrishna pillai v. state, no sanction is necessary inasmuch as he ceases to be a public servant on the date of taking cognizance of the offence against him by the said court. aggrieved by the order of the special judge, he has filed this revision, which has come up for admission.2. the petitioner was a government pleader at the time of the alleged commission of offence, but subsequently he ceased to be so. even in the petition filed before the trial court, the petitioner has stated that this court has decided that the government pleader is a public servant and, therefore, he confined his argument only with reference to the non-accordance of sanction to prosecute him. it appears that he filed an application earlier to discharge him from the case on the ground that he was not a public servant; but subsequent to the decision of this court that government pleader is also a public servant, he has contended that no sanction was accorded.3. learned counsel appearing for the petitioner relies on a ruling of the supreme court reported in : air1996sc901 rendered in the case of r. balakrishna pillai v. state of kerala for the proposition that sanction for prosecution of public servant is necessary even if the public servant sought to be prosecuted has ceased to be a public servant on the date of taking cognizance of the offence. by relying on this ruling, the learned counsel argues that the ruling cited by the trial court has been overruled by the supreme court in the aforesaid ruling.4. the ruling in the above case was rendered under section 197, cr.p.c. section 197, cr.p.c. not only speaks about the public servant in office but also speaks about the public servant, who has demitted the office or retired. the beginning words are 'when any person who is or was a judge or magistrate or a public servant....' that means, sanction is necessary while prosecuting a public servant whether at the time of launching the prosecution, he continues to be a public servant or ceases to be a public servant. the presence of the words 'is' or 'was' distinguished section 197 from section 19 as well as section 2(c) of the prevention of corruption act as it stands today. section 30 of the present act repeals the prevention of corruption act, 1947 and not withstanding such repeal, there is a saving clause also which says that anything done or any action taken in pursuance of the act repealed insofar as it is not inconsistent with the provisions of the present act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this act. under the prevention in of corruption act, 1947, section 6 which speaks about previous sanction for prosecution does not speak about the public servant, who ceases to be in office at the time of launching the prosecution. as per section 6 of the old act as in section 19 of the new one, no court shall take cognizance of the offence punishable...alleged to have been committed by a public servant, except with the previous sanction. there is no inconsistency between the old act and the new act, insofar as the 'provision for sanction is concerned.5. the supreme court in the case of kalicharan mahapatra v. state of orissa reported in has in detail discussed the distinction between section 197, cr.p.c. and the provision in the prevention of corruption act as follows (paras 11 and 13) :in section 197 of the new cr.p.c. the necessity for previous sanction is made applicable to former public servants also by using the words 'when any person who is or was a public servant'. in spite of bringing such a significant change to section 197 of the code in 1973, parliament was circumspect enough not to change the wording in section 19 of the act which deals with sanction. the reason is obvious. the sanction contemplated is section 197 of the code concerns a public servant who 'is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', whereas the offences contemplated in the pc act are those which cannot be treat as acts either directly or even purportedly done in the discharge of his official duties. parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former pc act was materially imported in the new pc act, 1988 without any change in spite of the change made in section 197 of the code.in para-5 of the ruling, it has been stated that 'public servant' is defined in section 2(c) of the act and it does not include a person who ceased to be a public servant. therefore, the supreme court has held that no sanction is required, if the accused has ceased to be a public servant at the time of taking cognizance of the offence. the supreme court has discussed the impact of the ruling rendered in r. balakrisna pillai's case also. in yet another case reported in 1999 scc (cri) 1050 in the case of state of jammu and kashmir v. charan dass puri the supreme court took into consideration the abovesaid ruling also and held that the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence punishable under the prevention of corruption act, no previous sanction would be required if by the time the court is called upon to make cognizance of that offence he has ceased to be a public iservant. therefore, there is no merit in the point urged by the learned counsel appearing for the petitioner and the revision does not deserve to be admitted at all. in a later decision rendered by the supreme court in the case of state of kerala v. v. padmanabhan nair reported in 1999 scc (cri) 1031 : air 1999 sc 2522 it has been categorically stated that an accused facing prosecution for offences under the pc act cannot claim immunity on the ground of want of sanction, if he cessed to be a public servant on the date when the court took cognizance of the said offences.6. while arguing for admission of this revision, the learned counsel again contended that the accused who was functioning as a government pleader during the relevant time cannot be held to be a public servant. even in his own petition filed before the trial court for discharge, he has stated as follows :the petitioner further submits that the hon'ble high court of chennai decided that the government pleader is a public servant. since the petitioner had contended that he was not a public servant, he did not raise the plea of want of sanction earlier. the petitioner now submits that there should be a sanction before proseaniting a public servant for an alleged offence committed by him in the discharge of his duties while he was in office.from this it is clear that his original plea that the petitioner was not a public servant, was not accepted and leaving that plea, he filed this petition questioning want of sanction to prosecute. having said so in the petition, the learned counsel now argues that the petitioner was not a public servant. the government pleaders are paid fees by the government for the cases conducted by them for defending the government. section 2, clause (c), sub-clause (1) of pc act reads that public servant means any person in the service or pay of the government or remunerated by the government by fees or commission for the purpose of any public duty. therefore, the second limb of clause (c), sub-clause (1) of section 2 attracts the case of the petitioner herein. therefore, the petitioner was the public servant under the prevention of corruption act.7. in view of the above discussion, the revision stands dismissed even at the admission stage itself.

Judgment:
ORDER

1. The petitioner stands accused of offences under Section 409, IPC and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 in Special C.C. No. 4/90 in the Court of the Special Judge (Principal Sessions Judge) at Pondicherry. The petitioner filed a Cri. M.P. No. 974 of 1999 before the learned Sessions Judge to discharge him from the case on the ground that there was no sanction for prosecuting him. The learned Special Judge dismissed the petition holding that the accused is a public servant and as per the decision reported in 1995 Cri LJ 963 (Kerala) rendered in the case of R. Balakrishna Pillai v. State, no sanction is necessary inasmuch as he ceases to be a public servant on the date of taking cognizance of the offence against him by the said Court. Aggrieved by the order of the Special Judge, he has filed this revision, which has come up for admission.

2. The petitioner was a Government Pleader at the time of the alleged commission of offence, but subsequently he ceased to be so. Even in the petition filed before the trial Court, the petitioner has stated that this Court has decided that the Government Pleader is a public servant and, therefore, he confined his argument only with reference to the non-accordance of sanction to prosecute him. It appears that he filed an application earlier to discharge him from the case on the ground that he was not a public servant; but subsequent to the decision of this Court that Government Pleader is also a public servant, he has contended that no sanction was accorded.

3. Learned counsel appearing for the petitioner relies on a ruling of the Supreme Court reported in : AIR1996SC901 rendered in the case of R. Balakrishna Pillai v. State of Kerala for the proposition that sanction for prosecution of public servant is necessary even if the public servant sought to be prosecuted has ceased to be a public servant on the date of taking cognizance of the offence. By relying on this ruling, the learned counsel argues that the ruling cited by the trial Court has been overruled by the Supreme Court in the aforesaid ruling.

4. The ruling in the above case was rendered under Section 197, Cr.P.C. Section 197, Cr.P.C. not only speaks about the public servant in office but also speaks about the public servant, who has demitted the office or retired. The beginning words are 'when any person who is or was a Judge or Magistrate or a public Servant....' That means, sanction is necessary while prosecuting a public servant whether at the time of launching the prosecution, he continues to be a public servant or ceases to be a public servant. The presence of the words 'is' or 'was' distinguished Section 197 from Section 19 as well as Section 2(c) of the Prevention of Corruption Act as it stands today. Section 30 of the present Act repeals the Prevention of Corruption Act, 1947 and not withstanding such repeal, there is a saving clause also which says that anything done or any action taken in pursuance of the Act repealed insofar as it is not inconsistent with the provisions of the present Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act. Under the Prevention in of Corruption Act, 1947, Section 6 which speaks about previous sanction for prosecution does not speak about the public servant, who ceases to be in office at the time of launching the prosecution. As per Section 6 of the old Act as in Section 19 of the new one, no Court shall take cognizance of the offence punishable...alleged to have been committed by a public servant, except with the previous sanction. There is no inconsistency between the old Act and the new Act, insofar as the 'provision for sanction is concerned.

5. The Supreme Court in the case of Kalicharan Mahapatra v. State of Orissa reported in has in detail discussed the distinction between Section 197, Cr.P.C. and the provision in the Prevention of Corruption Act as follows (Paras 11 and 13) :

In Section 197 of the new Cr.P.C. the necessity for previous sanction is made applicable to former public servants also by using the words 'when any person who is or was a public servant'. In spite of bringing such a significant change to Section 197 of the Code in 1973, Parliament was circumspect enough not to change the wording in Section 19 of the Act which deals with sanction. The reason is obvious. The sanction contemplated is Section 197 of the Code concerns a public servant who 'is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', whereas the offences contemplated in the PC Act are those which cannot be treat as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code.

In para-5 of the ruling, it has been stated that 'public servant' is defined in Section 2(c) of the Act and it does not include a person who ceased to be a public servant. Therefore, the Supreme Court has held that no sanction is required, if the accused has ceased to be a public servant at the time of taking cognizance of the offence. The Supreme Court has discussed the impact of the ruling rendered in R. Balakrisna Pillai's case also. In yet another case reported in 1999 SCC (Cri) 1050 in the case of State of Jammu and Kashmir v. Charan Dass Puri the Supreme Court took into consideration the abovesaid ruling also and held that the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence punishable under the Prevention of Corruption Act, no previous sanction would be required if by the time the Court is called upon to make cognizance of that offence he has ceased to be a public Iservant. Therefore, there is no merit in the point urged by the learned counsel appearing for the petitioner and the revision does not deserve to be admitted at all. In a later decision rendered by the Supreme Court in the case of State of Kerala v. V. Padmanabhan Nair reported in 1999 SCC (Cri) 1031 : AIR 1999 SC 2522 it has been categorically stated that an accused facing prosecution for offences under the PC Act cannot claim immunity on the ground of want of sanction, if he cessed to be a public servant on the date when the Court took cognizance of the said offences.

6. While arguing for admission of this revision, the learned counsel again contended that the accused who was functioning as a Government Pleader during the relevant time cannot be held to be a public servant. Even in his own petition filed before the trial court for discharge, he has stated as follows :

The petitioner further submits that the Hon'ble High Court of Chennai decided that the Government Pleader is a Public Servant. Since the petitioner had contended that he was not a public servant, he did not raise the plea of want of sanction earlier. The petitioner now submits that there should be a sanction before proseaniting a public servant for an alleged offence committed by him in the discharge of his duties while he was in office.

From this it is clear that his original plea that the petitioner was not a public servant, was not accepted and leaving that plea, he filed this petition questioning want of sanction to prosecute. Having said so in the petition, the learned counsel now argues that the petitioner was not a public servant. The Government Pleaders are paid fees by the Government for the cases conducted by them for defending the Government. Section 2, Clause (c), Sub-clause (1) of PC Act reads that public servant means any person in the service or pay of the Government or remunerated by the Government by fees or commission for the purpose of any public duty. Therefore, the second limb of Clause (c), Sub-clause (1) of Section 2 attracts the case of the petitioner herein. Therefore, the petitioner was the public servant under the Prevention of Corruption Act.

7. In view of the above discussion, the revision stands dismissed even at the admission stage itself.