PARKASH SINGH BADAL AND ANR V/S STATE OF PUNJAB AND ORS

Factually conceded that the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” is not necessary

Case name: Parkash Singh Badal and Anr V/S State of Punjab and Ors
Case number: Civil appeal number-5636 of 2006
Court: The supreme court of india
Bench: JUSTICE DR. ARJIT PASAYAT, JUSTICE S.H. KAPADIA
Decided on: DECEMBER 06, 2006
Relevant Act/Sections: The Prevention of Corruption Act, 1988, The Indian Penal Code, 1860, CRPC 1973
  • BRIEF FACTS AND PROCEDURAL HISTORY:
    • The factual scenario of these cases is concerned appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly.
  • Shri Sukhbir Singh Badal was a member of the Parliament. As noted above, primary stand is that the effect of Section 6(2) of the Old Act corresponding to Section 19(2) of the Act was not considered and in that view of the matter the judgment in Antulay’s case (supra) is to be considered per incuriam. Additionally, it is submitted that the voluminous charge sheets filed are extremely vague and do not indicate commission of any definite offence. Some allegations of general nature have been made.
  • It is submitted that the offences alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under Section 197 of the Code is mandatory. With reference to several judgments of this Court it is submitted that even offences punishable under Sections 468, 471 and 120B have been in certain cases held to be relatable to the official duty thereby mandating sanction in terms of Section 197 of the Code.
  • It is pointed out that the mala fide intention is clear as all these cases were registered at Mohali Police Station which was declared to be the police station for the purpose of investigation of the concerned cases and new Court was established for the trial of the concerned cases and jurisdiction was conferred on one officer without following the process of consultation with the High Court. These are indicative of the fact that action was taken with mala fide intention only to harass the accused persons as noted above.
  • PROCEDURAL HISTORY:
  1. In each of these appeals challenge is to the judgment of the Punjab and Haryana High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the ‘Act’) and/or the Indian Penal Code, 1860 (in short the ‘IPC’). In the latter category of cases the question raised is either lack of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 or the legality thereof.
  • It is the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta. It is stated that allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence. It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay, the said decision was rendered in the context of the Prevention of Corruption Act, 1947.
  • It is submitted that the provisions contained in Section 6 thereof are in pari materia to Section 19 of the Act so far as relevant for the purpose of this case; the effect of Section 6(2) of the Old Act (corresponding to Section 19(2) of the Act) was lost sight of. The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant of different category then no sanction in terms of Section 19(1) of the Act corresponding to Section 6(1) of the Old Act is necessary.
  • ISSUE BEFORE THE COURT:
  1. 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?
  • 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?
  • Where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have been taken place, the other questions really become academic?
  1. RATIO OF THE COURT:
    1. The court contended 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.
  • And this view has been consistently followed in C.R. Bansi case  and K.S. Dharmadatan v. Central Government (1979 (3) SCR 832). It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused.
  • The court stated that the submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to use. The court fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned Counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President.
  •  The answer was- in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. Ode can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different 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.
  • This Court adopted a construction which is based on the avoidance of mischief rule. That being so, the plea that the effect of Section 6(2) of the Old Act was not kept in view does not merit acceptance. Though a mere reference to a provision in all cases may not in all cases imply consciousness as to the effect of that provision the case at hand does not fall to that category.  In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object of the statute and the need for interpretation in a particular way.
  • Stand of learned counsel for the State is that since the impugned notification allocated certain cases to Courts of Special Judges already established with the consultation with the High Court, no further consultation was required. It is pointed out that said re-allocation does not impinge upon the control of the High Court  as envisaged by Article 235 of the Constitution . There is no doubt that the control of the High Court is comprehensive, exclusive and effective and it is to subserve the basic feature of Constitution, i.e. independence of judiciary. [See High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr. (1998 (3) SCC 72) and Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by Lrs. and Anr. ( 1999 (7) SCC 725)]
  • Articles 233 and 234 of the Constitution are not attracted because this is not a case where appointment of persons to be Special Judges or their postings to a particular Special Court is involved. It is however factually conceded that the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” is not necessary. Once group of cases are allocated to Special Court, consequentially other Special Courts cannot deal with them. Use of the afore-said expression was really un-necessary.  We consider it to be severable and so direct.
    • It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ’reasonableness’ or ’credibility’ of the said information is not a condition precedent for registration of a case.
  • DECISION HELD BY COURT:

The judgement of this case was given by JUSTICE ARIJIT PASAYAT that it is to be noted that learned counsel for the State submitted that to avoid any fear of forum shopping, the State is even willing to abide by the decision of this Court if the trial takes place in Chandigarh or wherever this Court directs, and to show that the State has no intention to the trial being conducted at a particular place and to prove its transparency the stand is taken.

The court held that it necessary to so direct, because the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” has already been stated to be unnecessary and would be of no consequence. That being so, the plea in that regard as raised by the appellants also fails.

Since all the challenges have been held to be without substance, the inevitable result is that the appeals deserve to be dismissed which directed by court.

Leave a Comment

Your email address will not be published. Required fields are marked *