HABIBULLA KHANversusSTATE OF ORISSA AND ANR.

                                  HABIBULLA KHAN                                          A
                                         v.
                              STATE OF ORISSA AND ANR.
,
                                    FEBRUARY 2, 1995
                                                                                          B
                            [P.B. SAWANT AND G.N. RAY, JJ.]

    ·-<         Orissa Special Courts Act, 199(}-Section 5 Prevention of corruption
          Act, 198&-Sections 13(1)(e) and 19-0ffence of criminal miscon-
          duct-Prosecution of MLA-No sanction of Governor or any other authority
          required-Provisions of Section 19 inapplicable-Offence committed during         c
          appellant's tenure as Minister-He continued to be MLA-Whether he could
          be prosecuted for offence committed after he ceased to be Minister-Held,
          No.

                The appellants were Minister in the Council of Ministers of the State     D
    ~     of Orissa during the period in which they were alleged to have been found
          in possession of pecuniary resources or property disproportionate to their
          known sources of income. Subsequently, they ceased to be Ministers due
          to the change of Government and thereafter were elected as the Members
          of the Legislative Assembly of the State. They continued to be such Mem-
          hers till the prosecutions were launched against them for the offence of        E
          criminal misconduct u/s 13 (l)(e) of the Prevention of Corruption Act.

                The appellant filed an application before the Special Court for

•   -     recalling the orders of cognizance of the offence of the ground that at the
          time of taking the cognizance, he was an MLA and as such a public servant
          within the meaning of Section 2(c)(viii) of the Act and, therefore, he· could
                                                                                          F
          not be tried for the offence u/s 13(1) (e) without the sanction of the
          Governor of the State u/s 19 of the Act who according to him was com-
          petent to remove an MLA. The Special Court dismissed the application
          holding that an MLA was not a public servant and furtlier the Governor
          was not competent to remove an MLA. This order was challenged by the            G
          appellant. The matter was dismissed by the High Court holding that an
          MLA was a public servant within the meaning of Section 2(c)(vii) of the
          Act but the Governor had no power of 'removal' of an MLA under Art. 192
          of the Constitution by way of punishment. It was held that since the
          Governor was not the authority to remove an MLA, the sanction was not           H
                                              819
    820                  SUPREME COURT REPORTS                  (1995] 1 S.C.R.

A necessary u/s 19 of the Act. These appeals were filed against the judgment
    of the High Court.

          A question of law raised for consideration was whether sanction was
  · required for launching a criminal prosecution against the appellants and
    whether the appellants could be prosecuted for the offence which they were
B alleged to have committed during their tenure as ministers after they
    ceased to be the ministers.

          Dismissing the appeals, this Court

          HELD : 1.1 The appellants were being. prosecuted for the criminal
C misconduct which they were alleged to have committed during the period
  they were holding high political office within the meaning of Section 5(1)
  of the Special Courts Act read with rules 2(1)(f))i) of the Rules made
  under that Act. The Special Courts Act incorporates the definition of
  "criminal misconduct" given in Section 13(1)(e) of the Prevention of Cor-
D ruption Act. The procedure for prosecution to be followed, however, is as
  laid down under the Special Courts Act. All that the Special Courts Act
  requires for launching a criminal prosecution against a person holding
  high political office is that the State Government should make a declara-
  tion under Section 5(1) of that Act that there was prima facie evidence of
E the commission of an offence by a person who held high public or political
  office in the State. Hence the provisions of Section 19 of the Act do not
  come into the picture in the present case. That being so, no sanction of the
  Governor. or any other authority was necessary for launching the criminal
  prosecutions in question. The appellant were being prosecuted for the
  misconduct alleged to have been committed by them during their tenure
F as the members of the Council of Ministers and not in t"eir capacity as
  the MLAs. Hence the provisions of Section 19 were inapplicable to the facts     •
  of the present case. (823-H, 824-A-B]

           1.2 Sanction of that competent authority alone would be necessary
    which is competent ~o remove the public servant from the office which he
G   is alleged to have misused or abused for corrupt motive and for which a
    prosecution is intended to be launched against him. (826-B]

          At the time a Court is asked to take cognizance, not only must the
    offence have been committed by a public servant but the person accused
H   must still be a public servant removable from his office by a competent
         HABIBULLA KHANv. STATE OFORISSA[SAWANT, J.]                     821

authority. [825-B] .                                                            A
      R.S. Nal'ak v.A.R. Antulay, [1984) 2 SCR 495; S. A. Venkatarammz v.
T!ze State,, [1°958) SCR 1040 and Veeraswami v. U11io11 of lnc!i~ and Ors.,
[1991] 3 sec 655, relied on.

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                      B
212 of 1995 Etc. Etc.

      From the Judgment and Order dated 5.5.93 of the Orissa High Court
in Crl. Misc Case No. 1253 of 1991.

      Raju Ramachandran, Pookkatt, Kailash Vasdev and Vinod Bhagat,             C
for the Appellant.

      P.P. Rao and N.S. Hegde, R.K. Mehta for the Respondents.

      The Judgment of the Court was delivered by
                                                                                D
      SAWANT, J. Leave granted.

      A common question of law, viz,. whether sanction is required for
launching a criminal prosecution against the appellants, has been raised in
these appeals.                                                                  E
      2. The Orissa Special Courts Act, 1990 (hereinafter referred to as
the "Special Courts Act") which came into force on 27th July, 1992 after
receiving the assent of the President, provides for constitution of special
courts for the speedy trial of certain classes of offences and for the
confiscation of the property involved in such offences. Section 2 (d) of that   F
Act defines "offence" to mean an offence of criminal misconduct within the
meaning of clause (e) of sub-section (1) of Section 13 of the Prevention of
Corruption Act, 1988 (hereinafter referred to as the "Act"). Section 5(1) of
the Special Courts Act, as amended by the Amendment of 1993 reads as
follows:
                                                                                G
        "5 (1). If the State Government is of the opinion that there is ptima
        facie evidence of the commission of an offence alleged to have
        been committed by a person who held high public or political office
       )n the State of Orissa, the State Government shall make a decla-
        ration to that effect in every case in which it is a the aforesaid      H
    822                    SUPREME COURT REPORTS                    (1995) 1 S.C.R.

A            opm10n".

          Rule 2 (1) of (I) (i) of the Orissa Special Courts Rules (hereinafter
    referred to as the "Rules") reads as follows : .

             ''2 (1) (t). " Person holding high political office" includes -
B
             (i) members of the Council of Ministers and the Chief Minister".

    3. Clause (e) of sub-section (1) of Section 13 of the Act defines "offence
    of criminal misconduct" as follows :

c            "13. Criminal misconduct ~ a public servant. (1) A public servant
             is said to commit the offence of criminal misconduct -

            xxxx                           xxxx                           xxxx

            (e) if he or any person on his behalf, is in possession or has, at
D           any time during the period of his office, been in possession for
            which the public sef\'ant cannot satisfactorily account, of pecuniary
            resources or property disproportionate to his known sources of
            income.

             Explanation. - For the purpose of this Section, "known sources of
E
             income" means income received from any lawful source and such
             receipt has been intimated in accordance with the provisions of
             any law, rules or orders for the time being applicable to a public
             servant."

F       It is not disputed that all the appellants were Ministers in the Council
  of Ministers of the respondent-State of Orissa during the period in which
  they were alleged to have been found in possession of pecuniary resources
  or property disproportionate to their known sources of income. Sub-
  sequently, they ceased to be Ministers due to the change of Government
  and thereafter were elected as the Members of the Legislative Assembly
G of the State ("MLA" for short). They continued to be such Members till
  the prosecutions were launched against them for the said criminal miscon-
  duct under Section 13 (1) (e) of the Act.

       4. Shri Habibulla Khan, the appellant in the appeal arising out of
H SLP No. 1563 of 1993 filed an application before the Special Court on 25th
         HABIBULLAKHANi·. STATEOFORISSA(SAWANTJJ                           823

.July, 1991 for recalling the orders of the cognisance of the offence on the A
 ground that at the time of taking the cognisance, he was an MLA and as
 such a public serYant within the meaning of Section 2( c) (viii) of the Act
 and, therefore, he could not be tried for the offence under Section 13 ( 1)
 ( e) of the Act without the sanction of the Governor of the State under
 Section 19 of the Act who according to him was competent to remove an
 MLA under Article 192 of the Constitution. On 18th January, 1991, the
                                                                                   B
 Special Court dismissed the application holding that an MLA was not a
 public servant and further the Governor was not competent to remove an
 MLA and hence no sanction was required under the said provision. This
 order was assailed by the appellant before the High Court under Section
 482 of the Code of Criminal Procedure on 22nd January, 1993. The learned        c
 Single Judge of the High Court referred the matter to Division Bench
 which dismissed the matter by its impugned judgment of 5th May, 1993
 holding that an MLA is a public servant within the meaning of Section 2(c)
 (viii) of the Act; but the power of "removal" mentioned in section 19 of the
 Act partakes the character of punishment and the Governor has no power D
 of removal of an MLA under Article 192 of the Constitution by way of
 punishment. There was a distinction between the concept of "removal" as
 used in st,:ction 19 of the Act and that of "disqualification" as used in Article
 192 of the Constitution. Since the Governor was not the authority to
 remove an MLA, the sanction was not necessary under Section 19 of the
 Act.                                                                              E
       The appellant, Nagarjuna Pradhan in appeal arising out of SLP No.
 2261 of 1994 raised similar plea on 17th August, 1993 but a long time after
 the prosecution was launched against him and 31 prosecution witnesses
 were examined.
                                                                                  F
       Similarly, the appellant, Rama Chandra Ulaka in appeals arising out
 of SLP Nos. 2259-60 of 1994 raised the same plea belatedly in the two
 prosecutions launched against him after 16 and 18 prosecution witnesses
 respectively were examined in those cases.
                                                                                 G
        5. The appellants are being prosecuted for the criminal misconduct
- which they are alleged to have committed during the period they were
  holding high political office within the meaning of section 5(1) of the
  Special Courts Act read with Rule 2(1) (t) (i) of the Rules made under
  that Act. The Special Courts Act incorporates the definition of "criminal      H
    824                   SUPREME COURT REPORTS                     (1995] 1 S.C.R.

A misconduct" given in section 13 (1) (e) of the Act. The procedure for
    prosecution to be followed, however, is as laid down under the Special
    Courts Act. All that the Special Courts Act requires for launching a
    criminal prosecution against a person holding high political office is that
    the State Government should make a decision under Section 5(1) of that
B   there is p1ima f acie evidence of the commission of an offence by a person
    who held public or political office in the State. Hence the provisions of
    Section 19 of the Act do not came into the picture in the present ca~e. That
    being so, no sanction of the Governor or any other authority is necessary
    for launching the criminal prosecutions in question.

C       6. Assuming, however, that the procedure to be followed before
  launching criminal prosecution is that under the Act, the admitted facts
  are that the appellants are being prosecuted for the misconduct alleged to
  have been committed by them during their tenure as the Members of the
  Council of Ministers and not in their capacity as the MLAs. Hence the
D provisions of section 19 of the Act are inapplicable to the facts of the
  present case as held in R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495.

        The second question is whether the appellants could be prosecuted
  for the offence which they are alleged to have committed during their
  tenure as ministers after they ceased to be the ministers. This question has
E also been answered by two decisions of this Court. In SA. Venkataraman
  v. The State, [1958] SCR 1040, it is held while construing similar provision
  of Section 6 of the predecessor of the present Act which provision was
  similar to the provisions of Section 19 of the present Act that no sanction
  was necessary for the prosecution of the appellant in that case, as he was
F not a public servant at the time of the taking of cognizance of the offence.
  The Court there observed as follows :

            "In construing the provisions of a Statute it is esseni:ial for a Court,
            in the first instance, to give effect to the natural meaning of the
            words used therein, if those words are clear enough. It is only in
G           the case of any ambiguity that a Court is entitled to ascertain the
            intention of the legislature. Where a general power to take cog-
            nizance of an offence 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 the prohibition. The words in S.6 (1) of the Act
H           are clear enough and must be given effect to. The more important
        HABIBULLA KHAN v. STATE OF ORISSA [SAWANT, J.)                825

        words in Cl. (c) of S. 6 (1) are "o_f the authority competent to A
        remove him from his office" A public servant who has ceased to
        be a public servant is not a person removable from any office by
        competent authority. The conclusion is inevitable that at the time
        a Court is asked to take cognizance not only must the offence have
        been committed by a public servant but the person accused must
                                                                           B
        still be a public servant removable from his office by a competent
        authority before the provisions of s.6 can apply"

       Similarly, Constitution ~ench in Veeraswami v. Union of India and
others, [1991) 3 SCC 655, while construing the provisions of the same
Section 6 of the Prevention of Corruption Act, 1947 held that no sanction    C
under Section 6 of that Act was necessary for prosecution of the appellant
it1 that case since he had retired from service on attaining the age of
superannuation and was not a public servant on the date of filing the
charge sheet.

       7. However, it was contended that while the Governor ha.cl given D
sanction to prosecute the Chief Minister when he continued to be an MLA
in the case of R.S. Nayak v. A.R. Antulay (supra), the question whether the
sanction was necessary to prosecute an MLA as a public servant did not
arise. It was, therefore, contended that although the offence alleged to have
been committed was during the appellants' tenure as ministers, the appel-
lants continued to be MLAs and, therefore, as public servants on the day
                                                                              E
of the launching of prosecution and hence sanction of the Governor under
Article 192 of the Constitution was necessary. This question has also been
answered in R.S. Nayak v. A.R. Antulay (supra). Referring to this Court's
decision in The State of (S.P.E. Hyderabad) v. Air Commodore Kailash
Chand, [1980] 2 SCR 697, this Court:                                          F
        "........ We would however, like to make it abundantly clear that if
        the two decisions purport to lay down that even if a public servant
        has ceased to hold that office as public servant which he is alleged
        to have abused or misused for corrupt motives, but on the date of
        taking cognizance of an offence alleged to have been committed G
        by him as a public servant which he ceased to be and holds an
        entirely different public office which he is neither alleged to have
        misused or abused for corrupt motives, yet the sanction of authority
        competent to remove him from such later office would be neces-
        sary before taking cognizance of the offence alleged to have been H
    826                   SUPREME COURT REPORTS                   (1995) 1 S.C.R.

A            committed by the public servant while holding an office which he
                                                                                    )r
             is alleged to have abused or misused and which he has ceased to
             hold, the decisions in our opinion, do not lay down the correct law
             and cannot be accepted as making a correct interpretation of Sec.
             6.

B                Therefore, upon a true construction of Sec. 6, it is implicit
             therein that sanction of that competent authority alone would be
             necessary which is competent to remove the public servant from
             the office which he is alleged to have misused or abused for corrupt
             motive and for which a prosecution is intended to be launched
c            against him."

          Assuming therefore, that the MLA, is a Public Servant within the
    meaning of Section 2 (c) (viii) of the Act, in view of the aforesaid proposi-
    tion of law laid down in R.S. Nayak v. A.R. Antulay, (supra), this contention
    also does not merit any consideration.
D
           fa view of the above, the appeals are dismissed.

    A.G.                                                      Appeals dismissed.