KALICHARAN MAHAPATRAversusSTATE OF ORISSA

                         KALICHARAN MAHAPATRA                                    A
                                   v.
                            STATE OF ORISSA

                             AUGUST 4, 1998

             [M.M. PUNCHHI, CJ., AND K.T. THOMAS, JJ.]                           B

        Criminal Law :

        Prevention of Corruption Act, 1988: Sections 19, 13(2) and 13 (1)
 (e).                                                                            c
        Public servant- Commission of offence by-Public servant ceased to
  be so at the time of trial-Prosecution of-Held: Even if a public servant
  ceased to be so he is liable to be prosecuted under the Act-However, court
  can take cognizance of offence even without sanction if he ceases to be a
  public servant-Merely because previous sanction is required for former         D
· public servant, under S. 197 Cr. P. C. It does not mean that no prosecution
  can be launched against a former public servant-Criminal Procedure Code,
  1973, s. 197.

       The appellant was an IPS Officer against whom a charge sheet under
 Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption         E
 Act, 1988 was registered after he retired from service. The appellant raised
 an objection that he was not liable to be tried under the Act since he was
 no more a public servant 1'he Special Court overruled appellant's objection.
 The High Court dismissed the petition filed by the appellant. Hence this
 appeal                                                                          F
       On behalf of the appellant it was contended that under Section 197 of
 the Criminal Procedure Code, 1973 sanction for prosecution was mandatory
 for a former public servant and since the words "former public servant" do
 not occur in any of the provisions of the Act it followed that no prosecution
 could be launched against the appellant who was a former public servant.        G
        Dismissing the appeal, this Court

       HELD : 1.1. A public servant who committed an offence mentioned in
 the Prevention of Corruption of Act, 1988, while he was a public servant, can
 be prosecuted with the sanction contemplated in Section 19 of the Act if he     H
                                     961
    962                      SUPREME COURT REPORTS                     (1998] 3 S.C.R.

A   continues to be a public servant when the court takes cognizance of the
    offence. But if he ceases to be a public servant by that time, the court can
    take cognizance of offence without any such sanction. In other words, the
    public servant who committed the offence while he was a public servant, is
    liable to be prosecuted whether he continues in office or not at the time of
B   trial or during the pendency of the prosecution. (967-E-F(

           1.2. There is no indication anywhere in the provisions of the Act that
    an offence committed by a public servant under the Act would vanish off from
    penal liability at the moment he demits his office as public servant. His being
    a public servant is necessary when he commits offence in order to make him
C   liable under the Act. He cannot commit any such offence after he demits his
    office. If the interpretation now sought to be placed by the appellant is accepted
    it would lead to the absurd position that any public servant could commit the
    offences under the Act soon before retiring or demitting his office and thus
    avert any proceedings for it or that when a public servant is prosecuted for
    an offence under the Act, he can secure an escape by protracting the trial
D   till the date of superannuation. (964-E-F)

          2. In Section 197 of the Criminal Procedure Code, 1973 the necessity
    for previous sanction of 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,
E   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 in 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
F   offences contemplated in the P.C. Act are those which cannot be treated 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 P.C. Act was
    materially imported in the new P.C. Act, 1988 without any change in spite of
    the change made in Section 197 of the Code. [967-C-D]
G
          R. Balakrishna Pillai v. State of Kera/a, (1996) 1 SCC 478, relied on.

          S.A. Venkataraman v. State, (1958) SCR 1040; C.R. Bansi v. State of
    Maharashtra, (1971]3 SCR 236; State of West Bengal v. Manmal Bhutoria,
    [1977)3 SCR 758 and K. Veeraswami v. Union of India, (1991)3 SCC 655,
H   referred to.
   KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 963

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                      A
770 of 1998.

      From the Judgment and Order dated 19.9.94 of the Orissa High Court
in Crl.M.No.2044of1993.

      Vinoo Bhagat for the Appellant.                                            B
      Jayant Dass and Raj Kumar Mehta for the Respondent.

      The Judgment of the Court was delivered by

      THOMAS. J. Leave granted.
                                                                                 c
      Appellant was an !PS Officer who reached upto the level of
Superintendent of Police in the State Police Service, Orissa. Based on some
sleuth informations raid was conducted in the residence of the appellant on
12-5-1990 and a good amount of cash and jewellery were recovered. A case
was registered against him under section 13(2) of the Prevention of Corruption   D
Act, 1988 (for short "the Act"). On 31-12-1990 appellant retired from service
but the investigation into the case continued. On 30-9-1992 the Vigilance
Department submitted a charge-sheet against the appellant for the offence
under Section 13(2) read with Section 13(1)(e) of the Act.

      The case was since transferred to the Court of Special Judge,              E
Bhubaneswar which was established under the provisions of Orissa Special
Courts Act 1990. Appellant made a multi-pronged move against the prosecution.
At the first instance he challenged the very constitution of Special Court and
then he raised a preliminary objection that he is not liable to be tried under
the Act since he was no more a public servant. His challenge against the
constitution of the Special Court did not succeed in spite of that contention    F
having been taken up to this Court in SLP (C) No. 13776/93 which was
dismissed by this Court. But he persisted with his preliminary objection which
was over-ruled by the Special Court. He then moved the High Court under
Section 482 of the code of Criminal Procedure (For short 'the Code') to have
the prosecution proceedings quashed on that ground Lut the High Court            G
dismissed the petition as per the impugned order.

      The main contention of the appellant was that the legislature did not
include a retired public servant within the purview of the Act and that there
is no mention in the Act about a person who ceased to be a public servant.
He invited our attention to Section 197 of the Code which envisages sanction     H
                                                                                         -f

    964                      SUPREME COURT REPORTS                     [1998] 3 S.C.R.

A   for prosecution of public servants and pointed out that the section is now
    applicable to former public servants also by virtue of the specific words in
    the Section "any person who is or was ...... a public servant''. According to the
    counsel since such words have not been employed in any of the provisions
    of the Act it could be inferred with reasonable precision that no prosecution
B   can be launched or continued against a person who, though was a public
    servant at the time of commission of the offence, ceased to be so subsequently.

        "Public servant" is defined in Section 2(c) of the Act. It does not
  include a person who ceased to be a public servant. Chapter IIJ of the Act
  which contains provisions for offences and penalties does not point to any
C person who became a non-public servant, according to the counsel.

          Among the provisions subsumed in the Chapter, Sections 8,9, 12 and 15
    deal with offences committed by persons who need not be public servants,
    though all such offences are intertwined with acts of public servants. The
    remaining provisions in the Chapter deal with offences committed by public
D   servants. Section 7 of the Act contemplates offence committed by a person
    who expects to be public servant.

           There is no indication anywhere in the above provisions that an offence
    committed by a public servant under the Act would vanish off from penal
    liability at the moment he demits his office as public servant. His being a
E   public servant is necessary when he commits the offence in order to make him
    liable under the Act. He cannot commit any such offence after he demits his
    office. If the interpretation now sought to be placed by the appellant is
    accepted it would lead to the absurd position that any public servant could
    commit the offences under the Act soon before retiring or demiting his office
    and thus avert any prosecution for it or that when a public servant is
F   prosecuted for an offence under the Act he can secure an escape by protracting
    the trial till the date of superannuation.

          Learned counsel for the appellant invited our attention to Section 19(1)
    of the Act which reads thus:
G
            "19. Previous sanction necessary for prosecution.- (I) No Court shall
            take cognizance of an offence punishable under sections 7, I 0, 11, 13
            and 15 alleged to have been committed by a public servant, except
            with the previous sanction,-

H               (a) in the case of a person who is employed in connection with
  KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 965

       the affairs of the Union and is not removable from his office save by       A
       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 affairs of a State and is not removable from his office save by or
       with the sanction of the State Government, of that Government;
                                                                                   B
          (c) in the case of any other person, of the authority competent to
       remove him from his office."

      It was contended that if the case does not fall under sub-clause (a) or
sub-clause (b) it should necessarily fall under sub-clause (c) and otherwise
no prosecution can lie for any offence under this Act. A person who ceased         C
to be public servant cannot be removed form any office, and hence it is
contended that he cannot be prosecuted for any offence under the Act.

      Section 19(1) of the Act is in para materia with Section 6(1) of the
preceding enactment i.e. Prevention of Corruption Act, 1947 (the old Act).
When a similar contention was raised before a three Judge Bench of this            D
Court regarding Section 6 of the Old Act in S.A. Venkataraman v. The State
[1958] SCR 1040, that contention was repelled. It was held thus:

       "The words ins. 6(1) of the Act are clear enough and they must be
       given effect to. There is nothing in the words used in s.6(1) to even       E
       remotely suggest that previous sanction was necessary before a court
       could take cognizance of the offences mentioned therein in the case
       of a person who had ceased to be a public .servant at the time the
       court was asked to take cognizance, although he had been such a
       person at the time the offence was committed. It was suggested that
       cl.(c) in s.6(1) refers to persons other than those mentioned in els. (a)   F
       and (b). The words 'is employed' are absent in this clause which
       would, therefore, apply to a person who had ceased to be a public
       servant though he was so at the time of the commission of the
       offence. Clause (c) cannot be construed in this way. The expressions
       'in the case of a person' and 'in the case of any other person' must        G
       refer to a public servant having regard to the first paragraph of the
       sub-section. Clauses (a) and (b), therefore, would cover the case of
       a public servant who is employed in connection with the affairs of the
       Union or a State and is not removable from his office save by or with
       the sanction of the central Government or the State Government and
       cl.(c) would cover the case of any other public servant whom a              H
    966                     SUPREME COURT REPORTS                   (1998] 3 S.C.R.

A          competent authority could remove from his office. The more important
           words i.n cl.(C) are 'of the authority competent to remove him from his
           office'."

    The same view was adopted by another three Judge Bench in C.R. Bansi v.
    State of Maharashtra, [1971] 3 SCR 236. This was followed in State of West
B   Bengal etc. v. Manma/ Bhutoria & Ors. etc., [1977] 3 SCR 758. The constitution
    Bench in K. Veeraswami v. Union ofIndia and Ors., [1991] 3 SCC 655, upheld
    the view that no sanction is required to prosecute a public servant after
    retirement.

          Learned counsel, however, contended that the legal position must be
C   treated as changed under the Prevention of Corruption Act of 1988 since
    Parliament has in the meanwhile changed the wording in Section 197 of the
    Code. The provision provided a check against launching prosecution
    proceedings against a public servant on the accusation of having committed
    an offence while acting or purporting to act in the discharge of his official
D   duty. For such prosecution sanction of the Government is made a condition
    precedent under Section 197 of the Code of Criminal Procedure 1898 (the old
    code). But such a sanction was not then necessary when a retired public
    servant was prosecuted. However, in the corresponding provision of the
    present Code (Section 197) the necessity for previous sanction is made
    applicable to former public servants also by using the words "when any
E   person who is or was a public servant". The contention here is that the earlier
    decisions of the court were rendered at a time when sanction for prosecution
    was not contemplated in Section 197 of the Code as for a public servant who
    has retired from service. Hence, according to him those decisions are of no
    help to sustain the same view now.
F         In R. Balakrishna Pillai v. State of Kera/a and anr., [1996] 1SCC478,
    learned Chief Justice Ahmadi has referred to the Law Commission's Report
    which suggested an amendment to Section 197 of the Code. The observation
    of the Law Commission in paragraph 15 .123 of its Report reads thus:

            "It appears to us that protection under the section is needed as much
G
            after retirement of the public servant as before retirement. The
            protection afforded by the section would be rendered illusory if it
            were open to a private person harbouring a grievance to wait until the
            public servant ceased to hold his official position, and then to lodge
            a complaint. The ultimate justification for the protection conferred by
H           Section 197 is the public interest in seeing that official acts do not
   KALICHARAN MAHAPATRA v. STATE OF ORISSA [THOMAS, J.] 967

         lead to needless or vexatious prosecutions. It should be left to the    A
         Government to determine from that point of view the question of the
         expediency of prosecuting any public servant."

Their Lordships after referring to the above Report have observed: "It was
in pursuance of this observation that the expression 'was' came to be employed
after the expression 'is' to make the sanction applicable even in cases where    B
a retired public servant is sought to be prosecuted.".

      It must be remembered that in spite of bringing such a significant
change to Section 197 of the Code in 1973, the 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 in Section 197        C
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 P.C.
Act are those which cannot be treated as acts either directly or even
purportedly done in the discharge of his official duties. Parliament must        D
have desired to maintain the distinction and hence the wording in the
corresponding provision in the former P.C. Act was materially imported in
the new P.C. Act, I 988 without any change in spite of the change made in
section 197 of the Code.

       The result of the above discussion is thus: A public servant who          E
committed an offence mentioned in the Act, while he was a public servant,
can be prosecuted with the sanction contemplated in Section 19 of the Act
if he continues to be a public servant when the court takes cognizance of the
offence. But if he ceases to be a public servant by that time the court can
take cognizance of offence without any such sanction. In other words, the        F
public servant who committed the offence while he was a public servant, is
liable to be prosecuted whether he continues in office or not at the time of
trial or during the pendency of the prosecution.

     The Special court and the High Court have, therefore, rightly repelled
the preliminary objections of the appellant. Accordingly we dismiss this         G
~~·                                                                        .

v.s.s.                                                    Appeal dismissed.