Supreme Court of India
STATE OF WEST BENGALversusSHYAMADAS BANERJEE & ANOTHER
- Citation
- 2008 INSC 1009
- Decided
- 3 September 2008
- Disposal
- Dismissed
- Bench
- ALTAMAS KABIR
Holding
A Special Judge cannot take cognizance of an offence when the accused has ceased to be a public servant at the time cognizance is taken, rendering the cognizance vitiated.
Summary
The case concerned Shyamadas Banerjee, a sitting MLA who was alleged to have forged medical bills in 1999. Although the offence was committed while he was an MLA, he ceased to be a member of the State Legislature in July 2000, long before a charge‑sheet was filed in 2003 and cognizance was taken by a Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The issue was whether a Special Court could exercise jurisdiction over a person who was a public servant at the time of the alleged offence but had ceased to be one when cognizance was taken, and whether an MLA qualifies as a “public servant” under Section 21 of the IPC for purposes of the Special Courts Act. The Supreme Court examined the definitions of public servant in the Prevention of Corruption Act, 1947 and the IPC, and relied on the Constitution Bench decisions in R.S. Nayak v. A.R. Antulay (MLA not a public servant) and distinguished P.V. Narasimha Rao v. State (which dealt with the 1988 Act). It held that when the accused ceases to be a public servant at the time cognizance is taken, Section 6 of the 1947 Act is not attracted, no sanction is required, and the Special Judge loses jurisdiction. Consequently, the cognizance taken was vitiated and the appeal was dismissed, confirming the High Court’s order.
Issues considered
- Whether a Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 can take cognizance of an offence alleged to have been committed by a person who was a sitting MLA at the time of the offence but had ceased to be an MLA when cognizance was taken.
- Whether an MLA is a ‘public servant’ within the meaning of Section 21 of the Indian Penal Code for the purpose of the Special Courts Act, 1949.
Legislation cited
Subjects
public servantMLASpecial Courts ActsanctioncognizancePrevention of Corruption ActSection 6Section 197jurisdictionspecial judge
Judgment
STATE OF WEST BENGAL v. SHYAMADAS 1211
BANERJEE & ANOTHER
'f respondent No.1 on 28.6.19B9 when he was a sitting A
M.L.A., and that charge-sheet was filed on the basis
thereof on 16.1.2003 and charges were framed on ·
29.7.2003. In other words, while the alleged offence was
said to have been committed when the respondent No.1
was a sitting M.L.A., charges were framed and cognizance 8
'(
was taken long after he had ceased to be a M.L.A. [Para
18] [1217,D-E]
1.2 If When the offence is alleged to have been
committed, the accused was a public servant, but by the
time the Court takes cognizance of the offence alleged to c
have been committed by him he had ceased to be a public
servant, no sanction would be necessary for taking
cognizance of the offence against him. As a necessary
corollary, if the accused ceases to be a public servant
when the Court takes cognizance of the offence, Section D
6 of the 1947 Act is not- attracted. In other words, the
accused loses his protective cover under Section 6 of
the 1947 Act or Section 197 Cr.P.C., and he is open to
prosecution without sanction having to be obtained,
which also necessarily means that the Special Judge E
under the Special Courts Act, 1949, would cease to have
jurisdiction over the accused. Thus, since the respondent
No.1 ceased to be a Member of the State Legislature at a
point of time when cognizance was taken by the Special
Judge, such cognizance and the proceedings taken on F
.... A
the basis thereof must be held to have been vitiated. [Paras
26 and 27] [1221 D-F; 1222,B-C]
PV Narasimha Rao v State (CBl/SPE) (1998) 4 SCC
626 - distinguished.
G
_...;
R.S. Nayak v A.R.Antu/ay (1984) 2 SCC 193 - relied
on.
Satwant Singh vs. The State of Punjab AIR 1960 SC 266
- referred to.
H
•
1212 SUPREME COURT REPORTS [2008] 12 S.C.R.
A Case Law Reference Y
(1998) 4 sec 626 Distinguished. Para 26
(1984) 2 sec 193 Relied on. Para 26
AIR 1960 SC 266 Referred to Para 11.
B CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1395 of 2008
From the final Judgment and Order dated 07.10.2005 of
the High Court at Calcutta in C.R.P. No. 2364 of 2003
c Altaf Ahmed, Neelam Sharma and Tara Chandra Sharma
for the Appellant.
Pradeep Kumar Ghosh, Raja Chatterjee and G.S.
Chatterjee for the Respondents.
D The Judgment of the Court was delivered by
·ALTAMAS KABIR, J. 1. Leave granted.
2. The short point for decision in this appeal is whether a
Special Judge exercising jurisdiction under the provisions of
E· the West Bengal Criminal Law Amendment (Special Courts)
Act, 1949, (hereinafter referred to as "the Special Courts Act,
1949"), can take cognizance of an offence against a member
of the State Legislative Assembly (hereinafter referred to as
"M.L.A.") when he had ceased to be a M.L.A., though the offence
F was alleged to have been committed when he was a sitting
M.L.A.
3. On the basis of certain newspapers reports one Nikhil
Kishore· Roy filed a Public Interest Litigation in the Calcutta
High. Court against the respondent No.1, Shri Shyamadas
G Banerjee, alleging that he had misused his official position as
M.L.A. by submitting forged and fictitious medical bills and
fe~s for prescription for Rs.1,65,530.30 on account of the
treatment of his wife and his mother between 8.9.1998 to
10.11.1998. The said Writ Petition, being No.1311 of 1999,
H was disposed of by a Division Bench of the Calcutta High
r-· ..._
~
'
-::
STATE OF WEST BENGAL v. SHYAMADAS
BANERJEE & ANOTHER [ALTAMAS KABIR, J.]
1213
Court on 23.6.1999, holding that the writ petitioner c-ould have A
" lodged a First Information Report or filed a compiaint petition
before the concerned Magistrate. Thereafter, on the basis of
the F.l.R. lodged by Shri Nikhil Kumar Roy investigation was
started under Section 468, 471, 420 and 511 of the Indian
Penal Code, (hereinafter referred to as "IPC"), by the Hare B
Street Police Station. The respondent No.1 surrendered before
the Chief Metropolitan Magistrate, Calcutta, on 17.1.2000, and
was released on bail. Charge-sheet was filed on 16.1.2003, on
the basis whereof the Special Court assumed jurisdiction under
the Special Courts Act, 1949, against the respondent No.1 c
treating him to be a "public servant" and framed charges against
him under Section 420/468/471 and 511 IPC.
4. Aggrieved by the order of the Special Judge 4th Court,
Calcutta, taking cognizance on the basis of the charge-sheet
filed, the respondent No.1 moved the High Court in revision D
(CRR No.1931 of 2003) alleging that the cognizance taken
was illegal since no sanction had been obtained by the
investigating agency to file a charge-sheet against him. The
High Court disposed of the revision petition granting liberty to
the trial Judge to proceed with the matter while the respondent E
No.1 was given liberty to adjudicate the points which had been
taken by him in the revision application before the learned trial
Judge. Such application was made by the petitioner on
10.9.2003, but the same was rejected by the learned trial Judge
- ~
which impelled the respondent No. 1 to once again move the
High Court in revision )CRR No.2364 of 2003).
5. During the hearing of the revision application, at the
very outset it was urged on behalf of the respondent No.1 that
since he had ceased to be a M.L.A. when cognizance was
F
taken by the learned Special Judge, such cognizance was bad G
and the proceedings taken on the basis thereof stood vitiated.
It was contended that the Special Courts Act, 1949, enabled a
Special Court to proceed against a M.L.A. defined as a "public
servant" under the Prevention of Corruption Act, 1947 and not
under the Prevention of Corruption Act, 1988. It was also H
1214 SUPREME COURT REPORTS [2008] 12 S.C.R. ~
~
A contended that even if the respondent No.1 was a M.L.A. at the ¥
time of commission of the alleged offence, he ceased to be so
when the charge-sheet was filed and the cognizance was taken
thereupon. It was further contended that there was no specific
statutory provision which provides that even though a person
B ceases to be a public servant, he could still be deemed to be
a public servant for the purpose of trial under the provisions of
the Special Courts Act, 1949, in respect of offences alleged to
have committed before he ceased to be a public servant. It was
submitted that, in the absence of such a provision, the charges
c framed and cognizance taken by the Special Judge was bad
in law and liable to be quashed.
6. After examining the aforesaid question in detail, the
learned single Judge of the High Court was of the view that the
respondent No.1 was neither a M.L.A. nor a public servant
D when cognizance was taken by the Special Judge. No sanction
was, therefore, necessary for his prosecution, but at the same ..,._
time the trial of the case could not be proceeded by the Special
Judge. On the basis of the aforesaid conclusion, the High Court
allowed the revision application and quashed the cognizance
E taken by the Special Court, but observed that the same would
not prevent the prosecuting machinery from initiating further
and/or fresh proceedings in accordance with law before the
Court having jurisdiction to entertain the same.
7. It is against the ?aid order of the High Court that the
F instant appeal has been filed by the State of West Bengal.
8. On behalf of the appellant it was submitted that in view
.... ...
of the provisions of Section 4 of the Special Courts Act, 1949,
the High Court had erred in quashing the cognizance taken by
the Special Court. It was contended that it was in his capacity
G
as M.L.A. that the respondent No.1 had submitted two claims
)...
for· reimbursement of Rs.1,65,530.30 towards medical
expenses said to have been incurred for treatment of his wife
and mother at a particular nursing home. The claim included
the price of medicines said to have been purchased from a
H
STATE OF WEST BENGAL v. SHYAMADAS 1215
BANERJEE & ANOTHER [ALTAMAS KABIR. J.]
particular shop. However, when the bills were scrutinized it was A
" found that there was no existence of either the nursing home or
the medicine shop at the addressed provided by the respondent
no.1, who had abused his position as M.L.A. for wrongful gain
and to cheat the Government exchequer.
9. One of the other points urged on behalf of the appellant B
is that the earlier writ petition filed by respondent No.1 for
quashing of the FIR had been rejected on 10.12.1999, and,
thereafter, on completion of the investigations charge-sheet
was filed against the respondent No.1 before the Special Judge
4th Court, Calcutta, who, assumed jurisdiction under the c
provisions of the Special Courts Act, 1949, treating the
respondent No.1 to be a public servant. It was urged that since
the offence complained of was said to have been committed
when the respondent No.1 was a sitting M.L.A., the charge-
sheet had been rightly filed before the Special Judge on which D
cognizance was taken and charges were framed.
10. Mr. Altaf Ahmed, learned Senior Counsel appearing
for the appellant, submitted that the question as to whether a
M. L.A. is a public servant within the meaning of Section 21 (12)(a)
IPC was no longer res integra having been decided by a E
Constitution Bench of this Court in the case of P.V.Narasimha
Rao vs. State (C.B.l./S.P.E.), (1998) 4 SCC 626, wherein in
clear and unambiguous language it was held that Members of
Parliament and M.L.A.s are public servants.
F
~ 11. On the question of sanction for prosecution it was
urged that if a public servant takes part in any activity, which is
. not part of his professional duties, no sanction for prosecution,
as contemplated in Section 197 Cr.P.C., would be necessary
to prosecute such a public servant.before the Special Judge.
G
In this regard, reference was made to another Constitution
Bench decision of this Court in Satwant Singh vs. The State of
"""'
Punjab, AIR 1960 SC 266.
12. It was contended that in the facts of the case the order
of the High Court could not be sustained and was liable to be H
1216 SUPREME COURT REPORTS [2008] 12 S.C.R.
A set aside. ·
13. The stand of the respondent No.1, on the other hand,
was that since the prosecution had been launched unde_r the
Special Courts Act, 1949, having regard to Section 1O thereof,
the provisions of the Prevention of Corruption Act, 194 7
8 (hereinafter referred to as "the 1947 Act") would be applicable
in the in~tant case and the respondent No.1 would have to
answer the description of "public servant" as defined under the
said Act and consequently under Section 21 IPC for such
prosecution. According to the respondent No.1, it would,
C therefore, have to be decided for the purpose of maintaining
the prosecution whether an accused who was a public servant
on the date of commission of the offence would also have to be
a public servant when cognizance of the offence was taken by
the court.
D
14. Mr. Pradip Ghosh, learned Senior Counsel· who
appeared for the respondent No.1, submitted that the High Court
had arrived at the right conclusion though on a reasoning which
was faulty. Reference was made to the provisions of Section 21
IPC and in particular clause (a) of the 12th description thereof, in
E sup.port of the stand taken by the respondent No.1 that on the
date when cognizance was taken by the Special Court he had
ceased to be a public servant and that the Special Judge could
not, therefore, have assumed jurisdiction in the matter.
F 15. Mr. Ghosh submitted that the aforesaid question had
been answered by the Constitution Bench in R.S. Nayak vs.
A.R. Antulay, (1984) 2 SCC 193, in which in no uncertain terms
it had been held that a M.L.A. is not a public servant within the
meaning of Section 21 IPC and that no sanction was necessary
G to prosecute a M.L.A. for any offence alleg·ed to have been
committed by him while he was a sitting M. L.A. when he ceased
to be a M.L.A. Consequently, the Special Court had no
jurisdiction to either entertain the charge-sheet filed on the basis
of the FIR lodged by Shri Nikhil Kumar Roy or to take cognizance
on the basis thereof.
H
STATE OF WEST BENGAL v. SHYAMADAS 1217
BANERJEE & ANOTHER [ALTAMAS KABIR, J.]
16. Regarding the decision in P.V.Narasimha Rao's case A
(supra), the stand taken on behalf of the respondent No.1 was
that in the said case the Constitution Bench was considering a
prosecution under the Prevention of Corruption Act, 1988,
wherein a "public servant" has been differently defined as
against the definition in the 1947 Act. B
17. Mr. Ghosh submitted that the instant case was one of
inherent lack of jurisdiction since the Special Judge under the
1949 Act had no jurisdiction over the respondent No.1 who
ceased to be a public servant when his term as a M.L.A. came
to an end. Mr. Ghosh submitted that, having regard to the c
decision in A.R.Antulay's case (supra) the respondent No.1
was never a public servant within the meaning of Section 21
IPC.
18. From the case made out on behalf of the respective
D
parties, there is no dispute that the respondent No.1 was elected
Jo\ as M.L.A. on 16.5.1996 and he ceased to be so on 20.7.2000.
There is also no dispute that the FIR was lodged against the
respondent No.1 on 28.6.1999 when he was a sitting M.L.A.,
and that. charge-sheet was filed on the basis thereof on
16.1.2003 and charges were framed on 29. 7.2003. In other E
words, while the alleged offence was said to have been
committed when the respondent No.1 was a sitting M.L.A.,
charges were framed and cognizance was taken long after he
had ceased to be a M.L.A. Accordingly, the main question which
F
' /
... falls for decision in this case is whether on the respondent No.1
ceasing to be a M.L.A. the Special Judge under the Special
Courts Act, 1949, could have assumed jurisdiction in the matter.
19. As to whether a Member of Parliament or a Member
of-a Legislative Assembly are public servants or not within the
G
meaning of Section 21 IPC, has fallen for the decision of the
two Constitution Benches of this Court. While in AR. Antulay's
case (supra) it has been categorically held that a M.L.A. is not
a public servant within the meaning of Section 21 IPC, in P.V.
..
Narasimha Rao's case (supra) the said view was distinguished
H
1218 SUPREME COURT REPORTS [2008] 12 S.C.R.
A and the majority view was that a Member of Parliament and the
State Legislatures are public servants for the purpose of the
Prevention of Corruption Act, 1988.
20. Even if we proceed on the basis of the view expressed
by the Constitution Bench in P.V.Narasimha Rao's case, we
8 are still faced with the question whether the same could be
applied in regard to assumption of jurisdiction by the Special
Court under the Special Courts Act, 1949, wherein reference
has been made to public servant as defined in the Prevention
of Corruption Act, 1947, and by extension Section 21 IPC. In
C the said context it is· necessary to refer to the provisions of
Section 4 of the Special Courts Act, 1949, which reads as
follows:
"4. Offences to be tried by Special Courts.- Notwithstanding
anything con.tained in the Code of Criminal Procedure,
D
1973 (2of1974), or in any other law in force, the offences
7.
specified in the schedule shall be triable by Spec!al Courts
only:
Provided that wh·eh trying a case, a Special Court may
E also try any offence other than the offence specified in the
Schedule, with which the accused may, under the Code of
Criminal Procedure, 1973, be charged at the same trial:
Provided further that every offence specified in the
Schedule shall be tried by the Special Court constituted
F for the particular area within which the offence was J,..
committed and where there are more than one Special <
Court constituted for any particular area, by _such one of
them as may be specified by the State Government by
notification in the Official Gazette."
G
21. The schedule referred to in Section 4 of the Act
t-
provides for offences triable by Special Judges. Paragraphs 2
and 3 of the said Schedu!e provides as follows:-
"2. An offence punishable under Section 409 of the Indian
H Penal Code (Act XLV of 1860), if committed by a public
STATE OF WEST BENGAL v. SHYAMADAS 1219
BANERJEE & ANOTHER [AlTAMAS KABIR, J.]
'1'
servant or by a person dealing with property belonging to A
Government as an agent of Government or by a person
dealing with property belonging to a Government company
as defined in Section 617 of the Companies Act, 1956 (1
of 1956), as an agent of such Government company in
respect of property - B'
with which he is entrusted, or
over which he has dominion
in his capacity of a public servant or in the way of his
business as such agent. c
3. An offence punishable under Section 417 or Section
420 of the Indian Penal Code, if committed by a public
servant or by a person dealing with property belonging to
Government as an agent of Government or by a person
D
dealing with property belonging to a Government company
as defined in Section 617 of the Companies Act, 1956 as
an agent of $uch Government company, while purporting
to act as such public servant or agent."
22. Section 2 of the 1947 Act which defines public servants E
is also reproduced hereinbelow:
"2. Interpretation -
For the purpose of this Act. 'public servant' means a public
/
~ servant as defined in Section 21 of the Indian Penal Code." F
23. In other words, in order to fall within the scope of the
1947 Act an accused person will have to answer the definition
of "public servant" as indicated in Section 21 IPC. The decision
in P.V. Narasimha Rao's case (supra) was dealing with a public
servant as defined in Section 2(c)(viii) of the 1988 Act, which G
reads as follows:
"2. Definitions -
In this Act, unless the context otherwise requires -
H
1220 SUPREME COURT REPORTS [2008] 12 S.C.R
~'
A (a) )()()(
(b) )()()(
(c) "public servant" means,-
(i) xxxxx
B
(ii) xxxxx
(iii) xxxxx
(iv) xxxxx
c (v) xxxxx
(vi) xxxxx
(vii)_ xxxxx
D (viii) any person who holds an office by virtue of which he
is authorized or required to perform any public duty."
24. Since in the instant case we are concerned with the
prosecution under the Special Courts Act, 1949, we will have
to confine ourselves to the definition of "public servant" within
E the scope of the 1947 Act which includes the definition of "public
servant" within the meaning of Section 21 IPC. The said
provision having been considered by the Constitution Bench in
A.R. Antulay's case, we are not expressing any opinion on that
score. However, the other question which still remains to be
F answered is whether the provisions of the Special Courts Act,
. 1949, would continue to apply to the respondent No.2 when he
ceased to be a public servant once he had completed his term
as M.L.A., even if the decision in P.V.Narasimha Rae's case
that Members of Parliament or State Legislative Assembly are
G public servants for the purpose of the Prevention of Corruption
Act, 1988, is applied to the facts of this case.
25. The aforesaid question has also been answered by
the Constitution Bench in A.R. Antulay's case (supra) while
considering the provisions of Section 6 of the 1947 Act which
-1 deals with grant of sanction for prosecution of public servants.
STATE OF WEST BENGAL v. SHYAMADAS 1221
BANERJEE & ANOTHER [ALTAMAS KABIR, J.]
~
Faced with a similar situation where prosecution had been A
launched against Shri A.R. Antu lay when he was Chief Minister
of Maharashtra, but had ceased to hold the said post though he
continued to be a sitting M.L.A. of the State Legislative
Assembly when cognizance was taken, the Constitution Bench,
inter alia, held that the object of providing for previous sanction B
.... for prosecution of public servants was to save the public servant ·
..,
from harassment of frivolous or unsubstantiated allegations. It
was observed that the policy under Section 6 is that there should
not be unnecessary harassment of a public servant. It was also
held that the accused must be a public servant when he is c
alleged to have committed the offence which could be
committed by public servants. While holding further that a trial
without a valid sanction, where one is necessary under Section
6, is a trial without jurisdiction, it was also held that a valid
sanction is required when the Court is called upon to take
D
-c
)'. cognizance of the offence. If, therefore, when the offence is
alleged to have been committed, the accused was a public
servant, but by the time the Court takes cognizance of the offence
alleged to have been committed by him he had ceased to be
a public servant, no sanction would be necessary for taking
cognizance of the offence against him. As a necessary corollary, E
if the accused ceases to be a public servant when the Court
takes cognizance of the offence, Section 6 is not attracted. In
other words, the accused loses his protective cover under
- .A
Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is
open to prosecution without sanction having to be obtained, F
which also necessarily means that the Special Judge under the
Special Courts Act, 1949, would cease to have jurisdiction over
the accused.
26. The issue which was decided in P.V. Narasimha Rao's
G
case (supra) which has been relied upon on behalf of the
appellant, deals with a situation contemplated under the
Prevention of Corruption Act, 1988, while in the instant case we
are concerned with a prosecution under the Special Courts
Act, 1949, which specifically refers to the provisions of Section
H
1222 SUPREME COURT REPORTS [2008) 12 S.C.R.
~
A 21 IPC. That is the distinguishing feature of the two decisions
and since we are considering a case involving the provisions
of the 194 7 Act, we are of the view that the decision in
A.R.Antulay's case is more apposite to the facts of the instant
case.
B 27. Since the respondent No.1 ceased to be a Member ¥
r
of the State Legislature at a point of time when cognizance was
taken by the Special Judge 4th Cour:t, Calcutta, such cognizance t<
and the proceedings taken on the basis thereof must be held
to have been vitiated.
c
28. We, accordingly, dismiss the appeal and confirIT) the
decision of the High Court.
N.J. Appeal dismissed.
I
'l ')
......_ :-
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