DILAWAR SINGHversusPARVINDER SINGH@ IQBAL SINGH AND ANR.

•                            DrLA WAR SINGH                                       A
                                   v.
                 PARVINDER SINGH@ IQBAL SINGH AND ANR.

                                NOVEMBER 8, 2005

                        [H.K. SEMA AND G.P. MATHUR, JJ.]                          B


           Prevention of Corruption Act, 1988:

           Sections 19 & 13(2)-Prosecution of public servant-Necessity of
     previous sanction-Two accused-Sanction for prosecution granted qua only C
     one accused-Closure report in favour of Appellant, the other accused-
     Dismissal of application filed by Respondent No.I under S.319 CrPC for
     summoning Appellant as a co-accused-Revision against-Direction of High
     Court to summon Appellant for prosecution-Validity of-Held, invalid-
     Appe/lant for whose prosecution no sanction was granted, cannot be D
     summoned to face prosecution-The Act being a special statute, S.19 thereof
     has an overriding effect over the general provisions contained in S.190 or
     319 CrPC-Special Judge while trying an offence under the Act, cannot
     summon another person and proceed against him in purported exercise of
     power under S.319 CrPC if no sanction has been granted by the appropriate
     authority for prosecution of such a person-Code of Criminal Procedure, E
     1973-Sections 190 & 319.

           Maxims- "Generalia specilibus non derogant"-Applicability of

             Pursuant to a complaint filed by Respondent No.1 against two police
      officials-Appellant SRO and an ASI, a case was registered under Section 13(2) F
      of the Prevention of Corruption Act, 1988. But after investigation, charge-
      sheet was submitted only against the ASI for whose prosecution, necessary
      sanction had been obtained from the competent authority under Section 19 of
    · the Act No sanction had beeo. granted for prosecuti~n of the appellant Instead
      a closure report was submitted in his favour since in the opinion of the G
      Investigating Officer he had not committed any offence. After the statement
      of Respondent No.I had been recorded, he moved an application under Section
      319 CrPC for summoning the Appellant as a co-accused in the case, but the
      Special Judge dismissed the application. Revision Petition against the same
      was allowed by High Court and a direction was issued to summon Appellant
                                         83                                       II
    84                       . SUPREME COURT REPORTS [200S] SUPP. S S.C;R.

A and try him in accordance with law.
          The question which arose in the present appeals is, In the absence of
    sanction under Section 19 of the Prevention of Corruption Act, 1988 for
    prosecution of the appellant under Section 13(2) of the said Act, whether the
    S\ppellant could be summoned to face the trial.
B
          Allowing the appeals, the Court

          HELD: 1.1. The impugned order of the High Court directing summoning
    of the appellant and proceeding against him is clearly erroneous in law.
                                                                          189-BJ
c
          1.2. Sub-section (1) of Section 19 of the Prevention of Corruption Act,
    1988 creates a complete bar on the power of the Court to take cognizance of
    an offence punishable under Sections 7, JO, 11, 13 and 15 alleged to have
    been committed by a public servant, except with the previous sanction of the
    competent authority enumerated in clauses (a) to (c) of this sub-section. If
D   the sub-section is read as a whole, it will clearly show that the sanction for
    prosecution has to be granted with respect to a specific accused and only after
    sanction has been granted the Court gets the competence to take cognizance
    of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have
    been committ~d by such public servant. It is not possible to read the sectfon
E   in the manner suggested by the respondent that 1i' sanction for prosecution
    has been granted qua one accused, any other public servant for whose
    prosecution no sanction has been granted, can also be summoned to face
    prosecution. (88-B-D)

          State ofGoa v. Babu Thomas (Crl. Appeal No. 215 of2004) decided by
F   S.C. on 29-9-2005, relied on.

         State through CBI v. Raj Kvmar Jain, 11998) 6 SCC 551 and Jaswant
    Singh v. State of Punjab, AIR (1958) SC 124, referred to.

          2.l. The contention raised by the respondent that a Court takes
G   cognizance of an offence and not of an offender holds good whim a Magistrate
    takes cognizance of an offence under Section 190 CrPC. (89-C)
                                                                                      l
           2.2. The Prevention of Corruption Act is a special statute and as the
    preamble shows this Act has been enacted to consolidate a.nd amend the law
    relating to prevention of corruption and for matters connected therewith. Here,
H   the principle expressed in the maxim Generalia specialibus non derogant


                                                                                      1
                                                                                          A
      DILAWARSINGHv. PARVINDER SINGH@IQBAL SINGH [G.P. MATHUR,J.]         85
would apply which means that if a special provision has been made on a certain A
matter, that matter is excluded from the general provisions. Therefore, the
provisions of Section 19 of the Act will have. a.n overriding effect over the
general provisions contained in Section 190 or Section 319 CrPC. A Special
Judge while trying an offence under the Prevention of Corruption Act, 1988,
cannot sumnn>n another person and proceed against him in the purported
exercise of power under Section 319 CrPC. if no sanction has been granted. d
by the appropriate authority for prosecution of such a person as the existence
of a sanction is sine qua non for taking cognizance of the offence qua that
person. (89-D, E, F)

     Raghubans Dubey v. State ofBihar, AIR (1967) SC 1167, distinguished.        C
      Venkateshwar Rao v. Govt. ofAndhra Pradesh, AIR (1966) SC 828; State
ofBihar v. Yogendra Singh, AIR (1982) SC 882 and Maharashtra State Board
of Secondary Education v. Paritosh Bhupesh Kumar Sheth, AIR (1984) SC
1543, relied on.
                                                                                 D
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 982-
983 of2003.

     From the Judgment and Order dated 3.7.2002 of the Punjab and Hru;yana
High Cottrt in Crl.R. No. 553/2002 and Order dated 4.3.2003 in Crl.Misc. No.
43241/2002 in Crl.R. No. 553 of2002.                                             E
      Sudhir Nandrajog, Sujit K. Singh, Abhishek Agarwal and Gagan Gupta
for the Appellant.

      C.L. Sahu for the Respondent.
                                                                                 F
      A.S. Sohal and Harpret S. Sandhu for Bimal Roy Jad for State.

      The Judgment of the Court was delivered by

      G.P. MA THUR, J. I. These appeals, by special leave, have been preferred
against the judgment and order dated 3. 7 .2002 of the High Court of Punjab      G
and Haryana by which Criminal Revision Petition No.553 of 2002 filed by the
respondent Parvinder Singh @Iqbal Singh was allowed and the appellant was
summoned for facing prosecution under Section 13(2) of Prevention of
Corruption Act, 1988. The appellant filed an application under Section 482
Cr.P.C. for recall of the order dated 3.7.2002 on the ground that he was not
served with the notice of the revision and the same was allowed ex-parte         H
    86                          SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A against him, but the application was dismissed by the order dated 4.3.2003
    ·with the observation that there was no provision for review under the Code
     of Criminal Proc;edure. The appellant has laid challenge to the aforesaid order
     as well.

          2. It is necessary to mention the basic facts giving rise to the present
B   appeals. On the complaint made by the wife, a case was registered against
    Parvinder Singh @ Iqbal Singh under Section 406/498-A IPC. On 27 .1.2000
    Parvinder Singh @ Iqbal Singh gave a complaint to the SSP Barnala alleging
    that on 23.1.2000, Jasbir Singh, ASI and a Home Guard came to his house on
    a scooter and forcibly took him to the Police Station Bamala. He was beaten
C   and tortured and was subjected to third degree methods. Some of his relatives,
    namely, Jarnail Singh, Sukhdev Singh, Sadhu Singh Grewal and Sukhdev
    Singh Virk came to the police station and requested the police personnel not
    to beat or torture him. It was further alleged in the complaint that Jasbir Singh,
    ASI, told them that they should talk to Dilawar Singh, S.H.O., who was sitting
    there on a chair. Dilawar Singh then demanded an amount of Rs.20,000 for
D   releasing Parvinder Singh. His relations then brought the amount, out of
    which Rs.15,000 was offered to Dilawar Singh but·he said, that the money may
    be handed over to ASI Jasbir Singh. The amount ofRs.15,000 was then given
    to ASI Jasbir Singh, who kept the same in the pocket of his coat. Parvinder
    Singh W¥ medically examined on 28.1.2000 and a case was registered under
E   Section 13(2) Prevention of Corruption Act, 1988 (hereinafter referred' to as
    "the Act"). After investigation, charge-sheet was submitted only against ASI
    Jasbir Singh. A closure report was submitted against Dilawar Singh S.H.O. as
    in the opinion of the investigating officer he had not committed any offence.
    It may be mentioned here that for prosecution of ASI Jasbir Singh, necessary
    sanction had been obtained from the competent authority under Section 19
F   of the Act. After the statement of the.complainant Parvinder Singh had been
    recorded, he moved an application under Section 319 Cr.P.C. for summoning
    Dilawar Singh, S.H.O. as a co-accused in the case. After hearing the counsel
    for the parties, the learned Special Judge dismissed the application by the
    order dated 7. 1.2002. Parvinder Singh filed a revision petition against the
G   aforesaid order which has been allowed by the High Court by the impugned
    order dated 3.7.2002 and a direction has been issued to summon Dilawar
    Singh and try him in accordance with law.

         3. Learned counsel for the appellant had submitted that no sanction had
    been granted under Section 19 of Prevention of Corruption Act, 1988, for
H   prosecution of the appellant under Section 13(2)· of the said Act and in·
      DILAWARSINGHv.PARVINDERSINGH@IQBALSINGH(G.P.MATHUR,J.]               87

absence of sanction, the appellant could not be summoned to face the trial. A
Learned counsel for the respondent Parvinder Singh has submitted that the
language used in the opening part of the sub-section ( 1) of Section 19 is that
"No Court shall take cognizance of an offence punishable under Sections 7,
 10, 11 13 ........."and in the present case cognizance of the offence had already
been taken by the Special Judge as against ASI Jasbir Singh and in these
circumstances, no fresh sanction was required as against the appellant Dilawar B
Singh. Learned counsel has further submitted that a Court takes cognizance
of an offence and not that of an offender and once cognizance has been
validly taken as against ASI Jasbir Singh, for whose prosecution sanctirm had
been .granted, there is no impediment in proceeding against the appellant
Dilawar Singh as well. In support of the submission that cognizance is taken C
of an offence and not that of an offender, reliance is placed on certain
observations made in Raghubans Dubey v. State of Bihar, AIR (1967) SC
1167, wherein it was held that once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the offenders; once
he takes cognizance of an offence it is his duty to find out who the offenders
really are and once he comes to the conclusion that apart from the persons D
sent up by the police some other persons are involved, it is his duty to
proceed against those persons. Learned counsel has also submitted that the
complainant respondent had moved an application for summoning the appellant
under Section 319 Cr.P.C., which gives wide power to the Court to summon
an accused and to proceed against him if it appears from the evidence that E
any person not being an accused has committed any offence for which such
person could be tried together with the accused.

      4. In our opinion, the contention raised by the learned counsel for the
appellant is well founded. Sub-section ( l) of Section 19 of the Act, which is
relevant for the controversy in dispute, reads as under :                        F
       "19. Previous sanction necessary for prosecution.-( I) 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, •
                                                                                 G
       (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        H'
    88                         SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A                affairs of a State and is not removable from his office save by or    y
                 with sailctio~ 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."
          This section creates a complete bar on the power of the Court to take
B cognizance of an offence punishable under Sections 7, JO, 11, 13 and 15
  alleged to have been committed by a public servant, except with the previous
  sanction of the competent authority enumerated in clauses (a) to (c) of this
  sub-section. If the sub-section is read as a whole, it will clearly show that the
  sanction for prosecution has to be granted with respect to a specific accused
C and only after sanction has been granted that the Court gets the competence
  to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and
  15 alleged to have been committed by such public servant. It is not possible
  to read the section in the manner suggested by learned counsel for the
  respondent that if sanction for prosecution has been granted qua one accused,
D any other public servant for whose prosecution no sanction has been granted,
  can also be summoned to face prosecution.

        5. In State through CB!v. Raj Kumar Jain, {1998] 6 SCC 551, the Court
  was examining the scope of Section 6(1) Prevention of Corruption Act, 1947,
  which is almost similar to sub-section (I) of Section 19 of the Act. After
E quoting the provisions of Section 6( I) Prevention of Corruption Act, 1947, it
  was held as under in para 5 of the report :

            "5. From a plain reading of the above section it is evidently clear that
            a Court cannot take cognizance of the offences mentioned therein
            without sanction of the appropriate authority. In enacting the above
F           section, the legislature thought of providing a reasonable protection
            to public servants in the discharge of their official functions so that
            t!ley may perform their duties and obligations undeterred by vexaticus
            and unnecessary prosecutions."

          6. In Jaswant Singh v. State ofPmrjab, AIR ( 1958) SC 124, sanction had
G been granted for prosecution of the accused for an offence under Section
    5(1 )(d) of the Prevention of Corruption Act, 1947, but no sanction had been
    granted for his prosecution under Section 5(l)(a) of the said Act. It was he_ld
    that no cognizance could be taken for prosecution of the accused under
    Section 5(1}(a) of the Prevention of Corruption Act, 1947, as no sanction had ,
H   been granted with regard to the said offence, but the accused could be tried
           DILAWARSINGH v. PARVINDER SINGH@IQBAL SINGH [G.P. MATHUR,J .]    89

  under Section 5(1)(d) of the said Act as there was a valid sanction for         A
  prosecution under the aforesaid provision.

         7. In Crl. Appeal No.215 of2004 (State o/Goa v. Babu Thomas) decided
  by this Bench on 29.9.2005, it was held that in absence of a valid sanction
  on the date when the Special Judge took cognizance of the offence, the taking
  of the cognizance was without jurisdiction and wholly invalid. This being the   B
  settled position of law, the impugned order of the High Court directing
  summoning of the appellant and proceeding against him along with Jasbir
  Singh ASI is clearly erroneous in law.

        8. The contention raised by learned counsel for the respondent that a
  Court takes cognizance of an offence and not of an offender holds good when C
  a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The
  observations made by this Court in Raghubans Dubey v. State of Bihar,
  (supra) were also made in that context. The Prevention of Corruption Act is
  a special statute and as the preamble shows this Act has been enacted to
  consolidate and amend the law relating to the prevention of corruption and D
  for matters connected therewith. Here, the principle expressed in the maxim
  Genera/ia specialibus non derogant would apply which means that if a
  special provision has been made on a certain matter, that matter is excluded
  from the general provisions. (See Venkateshwar Rao v. Govt. of Andhra
  Pradesh, AIR ( 1966) SC 828, State of Bihar v. Yogendra Singh, AIR ( 1982) E
  SC 882 and Maharashtra State Board of Secondary Education v. Paritosh
  Bhupesh Kumar Sheth, AIR (1984) SC 1543. Therefore, the provisions of
  Section 19 of the Act will have an overriding effect over the general provisions
  contained in Section 190 or 319 Cr~P.C. A Special Judge while trying an
  offence under the Prevention of Corruption Act, 1988, cannot summon another
  person and proceed against him in the purported exercise of power under F
  Section 319 Cr.P.C. ifno sanction has been granted by the appropriate authority
  for prosecution of such a person as th~ existence of a sanction is sine qua
  non for taking cognizance of the offence qua that person.

        9. For the reasons mentioned above, we are of the opinion that the
  impugned order of the High Court directing summoning of the appellant
  Dilawar Singh is wholly illegal and cannot be sustained. The appeals are
  accordingly allowed. The impugned order dated 3.7.2002 of the High Court is
  set aside and the order dated 7.1.2002 of the Special Judge, Bamala, is
- restored.
  B.B.B.                                                    Appeals allowed.