By TIOL News Service

NEW DELHI, DEC 08, 2006 : THE question in these appeals is the lack of sanction or the legality of sanction to prosecute in corruption cases.

The stand of the appellants is that

•  the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta.

•  allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence.

The facts:

•  appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is his son.

•  Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable under Sections 8 and 9 of the Act.

•  Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly.

•  Shri Sukhbir Singh Badal was a member of the Parliament.

No cognizance of an offence without sanction under IPC and Prevention of Corruption Act.:

The Supreme Court observed that:

•  Section 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority.

•  The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations.

•  The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant.

•  Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant.

•  The bar is to the taking of cognizance of offence by the court.

•  Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant.

•  Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused.

•  If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence.

•  A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the court.

And the Court concluded that:-

•  in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply.

•  In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants.

•  Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.

What happens if a public servant holds two posts and 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 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 Supreme Court observed,

"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 - a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President.

The Supreme Court observed that if sanction was necessary in such cases,

•  It would be a shield to an unscrupulous public servant.

•  Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law.

•  One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant/while abusing one office which he may have ceased to hold.

•  Such an interpretation in contrary to all canons of construction and leads to an absurd and product which of necessity must be avoided.

•  Legislation must at all costs be interpreted in such a way that it would not operate as a rougue's charter.

The Supreme Court observed that

•  Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.

•  Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

•  The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard.

•  There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.

•  The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.

•  If a public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc. then he would fall in the net of Sections 8 and 9.

•  A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions would not be sufficient. The person against whom mala fides conduct is attributed is interestingly not a party in the proceedings.

•  The ultimate test therefore is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence.

So the appeals are dismissed.

(See 2006-TIOL-172-SC-MISC in 'Legal Corner')