# 10 S.C.R. 949 ABHAY SINGH CHAUTALA v. C.B.I

- **Citation:** [2011] 10 S.C.R. 949
- **Court:** Supreme Court of India
- **Decided:** 2011-07-04
- **Case number:** Criminal Appeal No. 1257 of 2011
- **Bench:** V.S. Sirpurkar, T.S. Thakur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-949-abhay-singh-chautala-v-c-b-i-27099
- **Pages:** 44

## Headnote

Prevention bf Corruption Act, 1988: s.19 - Interpretation
A
B
of - Previous sanction for prosecution - Appellants were tried
before the Special Judge, CBI for offences u/ss.13{1)(e) and C
13(2) of the Act rlw s.109 /PC - Allegation that while working
as Members of Legislative Assembly they had accumulated
wealth disproportionate to their known sources of income -
However, there was no sanction for prosecution u/s. 19 of the
Act against the appellants - Objection raised regarding the o
absence of sanction - Special Judge held that the allegations
in the charge sheet did not contain the allegation that the
appellants had abused their current office as Member of
Legislative Assembly and, therefore, no sanction was
necessary - High Court upheld the order by placing reliance
E
upon the judgment of this Court in Prakash Singh Badal -
Justification - Plea of appellants that the judgment in Prakash
Singh Badal as also the relied on judgment in A.R. Antulay's
case were not correct and required reconsideration by a Larger
Bench - The appellants contended that the law declared in
A R. Antu/ay was obiter dictum; that the said case was decided
F
per incuriam of s. 6(2) of the Act, as it therein existed and
further that, in effect, the decision in A R. Antt.ilay added a
further proviso to s.19(1) of the Act which was impermissible
- Held: In Antulay's case, the Court held that the relevant date
of sanction would be the date on which the cognizance was
G
taken of the offence and that since the accused in that case
did not continue to hold the office that he had allegedly
abused on the date of cognizance, there was 'no necessity of
949
H
950
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A granting any sanction -
The Court held so in the most
unequivocal terms - It cannot be said that the question
decided by the Court regarding the abuse of a particular office
and the effects of the accused not continuing with that office
or holding an a/together different office was obiter - In fact, it
8 is on that very basis that the judgment of A.R.Antulay
proceeded -
The decision in Antulay's case has been
followed right up to the decision in Prakash Singh Badal and
even thereafter - The law settled in Antulay's case has stood
the test of time for last over 25 years and as per the maxim
C stare decisis et non quieta movere, it would be better to stand
by that decision and not to disturb what is settled - As regards
the contention that Antulay's case was decided per incuriam,
it is not as ifs. 6(2) of the Act as it then existed, was ignored
or was not referred to therein, in fact, the Bench had very
specifically made a reference to and had interpreted s. 6 as a
D whole - Merely because a concept of doubt is contemplated
in s. 19(2), it cannot mean that the public servant who has
abused some other office than the one he is holding could
not be tried without a sanction - The concept of 'doubt' or
'plurality of office' cannot be used to arrive at a conclusion that
E on that basis, the interpretation of s.19(1) would be different
from that given in Antulay's case or Prakash Singh Badal -
The argument regarding the addition of the proviso must also
fall as the language of the suggested proviso contemplates
a different "post" and not the "office'; which are entirely different
F concepts - It cannot be said that the decision in Antulay's case
and the subsequent decisions require any reconsideration -
Even on merits, there is no necessity of reconsidering the
relevant ratio laid down in Antu/ay's case - The High Court
was absolutely right in relying on the decision in Prakash
G Singh Badal to hold that the appellants had abused entirely
different office or offices than the one which they were holding
on the date on which cognizance was taken and, therefore,
there was no necessity of sanction uls. 19 of the Act - Maxims
- "stare decisis et non quieta movere".
H
ABHAY SINGH CHAUTALA v. C.8.1.
951
The appellants were tried before the Special Judge, A
CBI for offences punis

## Text

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[2011) 10 S.C.R. 949
ABHAY SINGH CHAUTALA
v.
C.B.I.
(Criminal Appeal No. 1257 of 2011)
JULY 04, 2011
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
Prevention bf Corruption Act, 1988: s.19 - Interpretation
A
B
of - Previous sanction for prosecution - Appellants were tried
before the Special Judge, CBI for offences u/ss.13{1)(e) and C
13(2) of the Act rlw s.109 /PC - Allegation that while working
as Members of Legislative Assembly they had accumulated
wealth disproportionate to their known sources of income -
However, there was no sanction for prosecution u/s. 19 of the
Act against the appellants - Objection raised regarding the o
absence of sanction - Special Judge held that the allegations
in the charge sheet did not contain the allegation that the
appellants had abused their current office as Member of
Legislative Assembly and, therefore, no sanction was
necessary - High Court upheld the order by placing reliance
E
upon the judgment of this Court in Prakash Singh Badal -
Justification - Plea of appellants that the judgment in Prakash
Singh Badal as also the relied on judgment in A.R. Antulay's
case were not correct and required reconsideration by a Larger
Bench - The appellants contended that the law declared in
A R. Antu/ay was obiter dictum; that the said case was decided
F
per incuriam of s. 6(2) of the Act, as it therein existed and
further that, in effect, the decision in A R. Antt.ilay added a
further proviso to s.19(1) of the Act which was impermissible
- Held: In Antulay's case, the Court held that the relevant date
of sanction would be the date on which the cognizance was
G
taken of the offence and that since the accused in that case
did not continue to hold the office that he had allegedly
abused on the date of cognizance, there was 'no necessity of
949
H
950
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A granting any sanction -
The Court held so in the most
unequivocal terms - It cannot be said that the question
decided by the Court regarding the abuse of a particular office
and the effects of the accused not continuing with that office
or holding an a/together different office was obiter - In fact, it
8 is on that very basis that the judgment of A.R.Antulay
proceeded -
The decision in Antulay's case has been
followed right up to the decision in Prakash Singh Badal and
even thereafter - The law settled in Antulay's case has stood
the test of time for last over 25 years and as per the maxim
C stare decisis et non quieta movere, it would be better to stand
by that decision and not to disturb what is settled - As regards
the contention that Antulay's case was decided per incuriam,
it is not as ifs. 6(2) of the Act as it then existed, was ignored
or was not referred to therein, in fact, the Bench had very
specifically made a reference to and had interpreted s. 6 as a
D whole - Merely because a concept of doubt is contemplated
in s. 19(2), it cannot mean that the public servant who has
abused some other office than the one he is holding could
not be tried without a sanction - The concept of 'doubt' or
'plurality of office' cannot be used to arrive at a conclusion that
E on that basis, the interpretation of s.19(1) would be different
from that given in Antulay's case or Prakash Singh Badal -
The argument regarding the addition of the proviso must also
fall as the language of the suggested proviso contemplates
a different "post" and not the "office'; which are entirely different
F concepts - It cannot be said that the decision in Antulay's case
and the subsequent decisions require any reconsideration -
Even on merits, there is no necessity of reconsidering the
relevant ratio laid down in Antu/ay's case - The High Court
was absolutely right in relying on the decision in Prakash
G Singh Badal to hold that the appellants had abused entirely
different office or offices than the one which they were holding
on the date on which cognizance was taken and, therefore,
there was no necessity of sanction uls. 19 of the Act - Maxims
- "stare decisis et non quieta movere".
H
ABHAY SINGH CHAUTALA v. C.8.1.
951
The appellants were tried before the Special Judge, A
CBI for offences punishable under Sections 13(1)(e) and
13(2) of the Prevention of Corruption Act read with
Section 109 of IPC in separate trials. It was alleged that
both the accused-appellants while working as Members
of Legislative Assembly had accumulated wealth B
disproportionate to their known sources of income.
Admittedly, there was no sanction for prosecution
under Section 19 of the Act against both the appellants.
An objection regarding the absence of sanction was C
raised before the Special Judge, who held that the
allegations in the charge sheet did not contain the
allegation that the appellants had abused their current
office as member of Legislative Assembly and, therefore,
no sanction was necessary. This order was challenged
by way of a petition under Section 482, Cr.P.C. before the D
High Court. The High Court dismissed the said petition
by placing reliance upon the judgment of this Court in
' Prakash Singh Badal.
The appellants contended before this Court that on E
the day when the charges were framed or on any date
when the cognizance was taken, both the appellants were
admittedly public servants and, therefore, under the plain
language of Section 19(1) of the Act, the Court could not
have taken cognizance unless there was a previous F
sanction under Section 19 of the Act. The appellants
further urged that the judgment of this Court in Prakash
Singh Badal as also the reliance on judgment in A R.
Antu/ay were not correct and required reconsideration
and urged for a reference to a Larger Bench.
G
In Antu/ay's case, the Court had held that where a
public servant holds a different capacity altogether from
the one which he is alleged to have abused, there would
be no necessity of sanction at all. The appellants
H
952
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A
contended that the law declared in A R. Antulay was obiter
dictum; that the said case was decided per incuriam of
Section 6(2) of the Act, as it therein existed (and which is
pari materia with Section 19(2) of the Act) and further that,
in effect, the decision in A R. Antulay added a further
B proviso to Section 19(1) of the Act which was
impermissible.
Dismissing the appeals, the Court
HELD:1.1. In A. R. Antulay's case, the Court held that
C the relevant date of sanction would be the date on which
the cognizance was taken of the offence and that since
the accused in that case did not continue to hold the
office that he had allegedly abused on the date of
cognizance, there was no necessity of granting any
D sanction. The Court held so in the most unequivocal
terms. It cannot be said that the question decided by the
Court regarding the abuse of a particular office and the
effects of the accused not continuing with that office or
holding an altogether different office was obiter. In fact it
E
is on that very basis that the judgment of A.R.Antu/ay
proceeded. [Para 20) [980-D-F]
1.2. This finding is buttressed by the decision
reported in Balakrishnan Ravi Menon which decision came
almost immediately after Prakash Singh Badal case.
F
Whether the finding given in the judgment of Antulay's
case was obiter was the question that directly fell for
consideration in that case. The Court unequivocally
rejected the contention that the finding given in Antu/ay's
case regarding the abuse of office of Chief Minister was
G obiter. In Antulay's case the complainant had specifically
and basically raised the point that since the accused had
ceased to hold the office of Chief Minister on the date of
cognizance, there was no question of any sanction and
that was the main issue which was decided in Antu/ay's
H case as the basic issue. The finding given in Antulay's
ABHAY SINGH CHAUTALA v. C.8.1.
953
case thus cannot be said to be in any manner obiter and
does not require reconsideration. [Paras 22, 23) [981-CG]
1.3. Further, the decision in Antu/ay's case has been
followed right up to the decision in Prakash Singh Badal
and even thereafter. The law settled in Antu/ay's case has
stood the test of time for over 25 years and it is trite that
going as per the maxim stare decisis et non quieta movere,
it would be better to stand by that decision and not to
disturb what is settled. [Para 24] [982-D-E]
1.4. The appellants thereafter contended that the
decision in Antu/ay's case is hit by the doctrine of per
incuriam. In support of their argument, the appellants
contended that in Antu/ay's case, Section 6(2) of the Act,
A
B
c
as it therein existed, was ignored. The argument was that
D
Section 6(2) which is parimateria with Section 19(2) of the
Act provides that in case of doubt as to which authority
should give the sanction, the time when the offence is
alleged to have been committed is relevant. The further
argument was that if that is so, then the Act expressly
E
contemplates that a public servant may be holding office
in a different capacity from the one that he was holding
when the offence is alleged to have been committed at
the time when cognizance is taken so as to cause doubt
about the sanctioning authority and thus, there would be
F
necessity of a sanction on the date of cognizance and,
therefore, in ignoring this aspect, the decision in Antu/ay's
case has suffered an illegality. This argument is basically
incorrect. In Antulay's case, it is not as if Section 6(2) of
the Act as it then existed, was ignored or was not referred
G
to, but the Constitution Bench had very specifically made
a reference to and had interpreted Section 6 as a whole.
Therefore, it cannot be said that the Constitution Bench
had totally ignored the provisions of Section 6 and more
particularly, Section 6(2). Once the Court had held that if
H
954
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A the public servant had abused a particular office and was
not holding that office on the date of taking cognizance,
there would be no necessity to obtain sanction, it was
obvious that it was not necessary for the Court to go up
to Section 6(2) as in that case, there would be no
B. question of doubt about the sanctioning authority. It
cannot be said that the Act expressly contemplates that
a public servant may be holding office in a different
capacity from the one that he was holding when the
offence is alleged to have been committed at the time
c when cognizance is taken. That is not the eventuality
contemplated in Section 6(2) or Section 19(2), as the case
may be. The view taken in Antu/ay's case was on a specific
interpretation of Section 6 generally and more
particularly, Section 6(1 )(c), which is parimateria to
0 Section 19(1)(c) of the Act. Once it was held that there was
no necessity of sanction at all, there would be no
question of there being any doubt arising about the
sanctioning authority. The doubt expressed in Section
19(2) is not a pointer to suggest that a public servant may
E have abused any particular office, but when he occupies
any other office subsequently, then the sanction is a
must. That will be the incorrect reading of the Section.
The Section simply contemplates a situation where there
is a genuine doubt as to whether sanctioning authority
should be the Central Government or the State
F Government or any authority competent to remove him.
The words in Section 19(2) are to be read in conjunction
with Sections 19(1 )(a), 19(1 )(b) and 19(1 )(c). These
clauses only fix the sanctioning authority to be the
authority which is capable of "removing a public servant".
G The doubt could arise in more manners than one and in
more situations than one, but to base the interpretation
of Section 19(1) of the Act on the basis of Section 19(2)
would be putting the cart before the horse. The two
Sections would have to be interpreted in a rational
H manner. Once the interpretation is that the prosecution
ABHAY SINGH CHAUTALA v. C.B.I.
955
of a public servant holding a different capacity than the A
one which he is alleged to have abused, there is no
question of going to Section 6(2) I 19(2) at all in .which
case there will be no question of any doubt. This
interpretation of Section 6(1) or, as the case may be,
Section 19(1), is on the basis of the expression "office" B
in three sub-clauses of Section 6(1 ), or the case may be,
Section 19(1). For all these reasons, it cannot be said that
Antu/ay's case was decided per incuriam of Section 6(2).
[Paras 25, 26 and 27] [983-E-H; 984-A-H; 985-A·C; 986-F·
H; 987-A-B]
C
1.5. The appellants, in support of their argument that
Antulay's case requires reconsideration, urged that that
interpretation therein amounted to re-writing of Section
19(1) and as if a proviso would be added to Section 19(1)
to the following effect:- "Provided that nothing in this D
sub-Section shall apply to a case where at the time of
cognizance, the public servant is holding a different post
with a different removing authority from the one in which
the offence is alleged to have been committed." The
argument regarding the addition of the proviso must also E
fall as the language of the suggested proviso
contemplates a different "post" and not the "office",
which are entirely different concepts. That is apart from
the fact that the interpretation regarding the abuse of a
particular office and there being a direct relationship F
between a public servant and the office that he has
abused, has already been approved of in Antulay's case
and the other cases following Antu/ay's case including
Prakash Singh Badal. It was also urged that a literal
interpretation is a must, particularly, to sub-Section (1) of G
Section 19. That argument also must fall as sub-Section
(1) of Section 19 has to be read with in tune with and in
light of sub-Sections (a), (b) and (c) thereof. Therefore, the
theory of litera regis is rejected while interpreting Section
19(1). On the same lines, the argument based on the word H
956
SUPREME COURT REPORTS
(2011] 10 S.C.R.
A
"is" in sub-Sections (a), (b) and (c) is also rejected. It is
true that the Section operates in praesenti; however, the
Section contemplates a person who continues to be a
public servant on the date of taking cognizance.
However, as per the interpretation, it excludes a person
B who has abused some other office than the one which
he is holding on the date of taking cognizance, by
necessary implication. Once that is clear, the necessity
of the literal interpretation would not be there in the
present case. Therefore, giving the literal interpretation to
c the Section would lead to absurdity and some unwanted
results, as had already been pointed out in Antulay's case.
[Paras 28, 29] [987-C-F; 988-H]
1.6. Based on the language of Sections 19(1) and (2),
the appellant contended that two different terms were
D used in the whole Section, one term being "public
servant" and the other being "a person". It was, therefore,
urged that since the two different terms were used hy the
Legislature, they could not connote the same meaning
and they had to be read differently. The argument was that
E
the term "public servant" in relation to the commission
of an offence connotes the time period of the past
whereas the term "a person" in relation to the sanction
connotes the time period of the present and therefore,
since the two terms are not synonymous and convey
F
different meanings in respect of time/status of the office,
the term "public servant" should mean the "past office"
while "person" should mean the "present status/present
office". While the different terms used in one provision
would have to be given different meaning, it cannot be
G said that by accepting the interpretation of Section 19(1)
in Antulay's case, the two terms referred to above get the
same meaning. The term "public servant" is used in
Section 19(1) as Sections 7, 10, 1 and 13 which are
essentially the offences to be committed by public
H servants only. Section 15 is the attempt by a public
ABHAY SINGH CHAUTALA v. C.8.1.
957
servant to commit offence referred to in Section 13(1)(c)
A
or 13(1)(d). Section 19(1) speaks about the cognizance of
an offence committed by a public servant. It is not a
cognizance of the public servant. The Court takes
cognizance of the offence, and not the accused, meaning,
the Court decides to consider the fact of somebody
having committed that offence. In case of this Act, such
accused is only a public servant. Then comes the next
stage that such cognizance cannot be taken unless there
is a previous sanction given. The sanction is in respect
B
of the accused who essentially is a public servant. The c
use of the term "a person" in sub-Sections (a), (b) and
(c) only denotes an "accused". An "accused" means who
is employed either with the State Government or with the
Central Government or in case of any other person, who
is a public servant but not employed with either the State
0
Government or the Central Government. It is only "a
person" who is employed or it is only "a person" who is
prosecuted. His capacity as a "public servant" may be
different but he is essentially "a person" - an accused
person, because the Section operates essentially qua an
accused person. It is not a "public servant" who is
employed; it is essentially "a person" and after being
employed, he becomes a "public servant" because of his
position. It is, therefore, that the term "a person" is used
E
in clauses (a), (b) and (c). The key words in these three
clauses are "not removable from his office save by or with
the sanction of ....
11
• It will be again seen that the offences
under Sections 7, 10, 11 and 13 are essentially committed
by those persons who are "public servants". Again, when
it comes to the removal, it is not a removal of his role as
F
a "public servant", it is removal of "a person" himself G
who is acting as a "public servant". Once the Section is
read in this manner, then there is no question of
assigning the same meaning to two different terms in the
Section. [Para 30] [989-A-H; 990-A-D]
H
958
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
1.7. Again on the basis of the definition of "public
servant" as given in Section 2(c) of the Act, and more
particularly clause 2(c)(vi), which provides that an
arbitrator, on account of his position as such, is public
servant, it was contended by the appellants that some
B persons, as contemplated in Sections 2(c)(vii), (viii), (ix)
and (x), may adorn the character of a public servant only
for a limited time and if after renouncing that character
of a public servant on account of lapse of time or noncontinuation .of their office they are to be tried for the
C abuse on their part of the offices that they held, then it
would be a very hazardous situation. The contention
cannot be accepted. If the person concerned at the time
when he is to be tried is not a public servant, then there
will be no necessity of a sanction at all. Section 19(~) is
D very clear on that issue. This Court does not see how it
will cause any hazardous situation. Similarly, it was tried
to be argued that a Vice-Chancellor who is a public
servant and is given a temporary assignment of checking
the papers or conducting examination or being invigilator
E by virtue of which he is a public servant in an entirely
different capacity as from that of a Professor or a ViceChan cellor, commits an offence in the temporary
capacity, then he would not be entitled to the protection
and that will be causing violence to such public servant
and, therefore, such could not have been the intention of
F the Legislature. The example is wholly irrelevant in the
light of the clearest possible dictum in Antulay's case and
in Prakash Singh Badal's case. If the concerned person
continues to be a Vice-Chancellor and if he has abused
his office as Vice-Chancellor, there would be no doubt
G that his prosecution would require a sanction. So, it will
be a question of examining as to whether such person
has abused his position as a Vice-Chancellor and whether
he continues to be a Vice-Chancellor on the date of taking •
of the cognizance. If, however, he has not abused his·
H position as Vice-Chancellor but has committed some
ABHAY SINGH CHAUTALA v. C.B.I.
959
other offence which could be covered by the subA
Sections of Section 19, then there would be no necessity
of any sanction. [Para 31] [990-E-H; 991-A-D]
1.8. The concept of 'doubt' or 'plurality of office'
cannot be used to arrive at a conclusion that on that
8
basis, the interpretation of Section 19(1) would be
different from that given in Antulay's case or Prakash Singh
Badal. Merely because a concept of doubt is
contemplated in Section 19(2), it cannot mean that the
public servant who has abused some other office than
C
the one he is holding could not be tried without a
sanction. The appellants tried to support their argument
on the basis of the theory of "legal fiction". This Court
does not see as to how the theory of "legal fiction" can ·
work in this case. It may be that the appellants in this case
0
held more than one office during the check period which
they are alleged to have abused; however, there will be
no question of any doubt if on the date when the
cognizance is taken, they are not continuing to hold that
very office. The relevant time is the date on which the
cognizance is taken. If on that date, the appellant is not
E
a public servant, there will be no question of any sanction.
If he continues to be a public servant but in a different
capacity or holding a different office than the one which
is alleged to have been abused, still there will be ·no
question of sanction and in that case, there will also be
F
no question of any doubt arising because the doubt can
arise only when the sanction is necessary. In case of the
present appellants, there was no question of there being
any doubt because basically there was no question of
the appellants' getting any protection by a sanction. [Para
G
32] [991-F-H; 992-A-D]
1.9. It cannot be said that the decision in Antu/ay's
case and the subsequent decisions require any
reconsideration. Even on merits, there is no necessity of H
960
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A reconsidering the relevant ratio laid down in Antulay's
case. The High Court was absolutely right in relying on
the decision in Prakash Singh Badal to hold that the
appellants in both the appeals had abused entirely
different office or offices than the one which they were
B holding on the date on which cognizance was taken and,
therefore, there was no necessity of sanction under
Section 19 of the Act as held in K. Karunakaran v. State of
Kera/a and the later decision in Prakash Singh Badal. [Paras
33, 34] [992-E-G]
c
Prakash Singh Badal v. State of Punjab 2007 (1) SCC
1: 2006 (10) Suppl. SCR 197; K. Karunakaran v. State of
Kera/a 2007 (1) SCC 59: 2006 (10) Suppl. SCR 283; S.A.
Venkataraman v. State AIR 1958 SC 107: 1958 SCR 1040;
Balakrishnan Ravi Menon v. Union of India 2007 (1) SCC 45
D and Shanker Raju Vs. Union of India 2011 (2) SCC 132:
E
2011 (2) SCR 1-relied on.
·
R. S. Nayak v. A R. Antu/ay 1984 (:~) SCC 183: 1984
(2) SCR 495 - explained and relied on.
Air Commodore Kai/ash Chand v. The State (S.P.E.
Hyderabad) (1973) 2 AWR 263; P. V. Narsimha Rao Vs. State
1998 (4) SCC 626: 1998 (2) SCR 870; Waman Rao Vs.
Union of India 1981 (2) SCC 362: 1981 (2) SCR 1;
F Manganese Ore (India) Ltd. Vs. CST1976 (4) SCC 124: 1976
(3) SCR 99; Ganga Sugar Corpn. Vs. State of UP. 1980 (1)
SCC 223: 1980 (1) SCR 769; Union of India Vs. Raguhbir
Singh 1989 (2) SCC 754: 1989 (3) SCR 316; Krishena
Kumar Vs. Union of India 1990 (4) SCC 207: 1990 (3) SCR
352; Union of India Vs. Paras Laminates (P) Ltd. 1990(4) SCC
G 453: 1990 (3) SCR 789; Hari Singh Vs. State of Haryana
1993 (3) SCC 114: 1993 (3) SCR 61; Punjab Land
Development Reclamation Corporation Ltd. v. Presiding
Officer 1990 (3) SCC 682: 1990 (3) SCR 111 and Nirmal
Jeet Kaur Vs. State of M.P. 2004 (7) SCC 558: 2004 (3)
H Suppl. SCR 1006 - referred to.
ABHAY SINGH CHAUTALA v. C.B.L
961
Robert Wigram Crawford Vs. Richard Spooner 4 MIA
A
179; Re Bedia Vs. Genreal Accident, Fir and Life Assurance
Corporation Ltd. 1948 (2) All ER 995; Bourne (Inspector of
Taxes) Vs. Norwich Crematorium Ltd. 1967 (2) All ER 576;
Tiverton Estates Ltd. Vs. Wearwell Ltd. 1974 (1) WLR 176 -
referred to.
B
Habibullah Khan v. State of Orissa & Anr. 1995 (2) SCC
437: 1995 (1) SCR 819; Abdul Wahab Ansari Vs. State of
Bihar 2000 (8) SCC 500: 2000 (3) Suppl. SCR 747; Baij
Nath Prasad Tripathi Vs. State of Bhopal 1957 (1) SCR 650;
C
Director of Settlement, State of A.P. v. M.R. Apparao 2002
(4) SCC 638: 2002 (2) SCR 661; State of Haryana Vs. Ranbir
@ Rana 2006 (5) SCC 167: 2006 (3) SCR 864; Division
Controller, KSRTC v. Mahadeva Sheffy & Anr. 2003(7) SCC
197: 2003 (2) Suppl. SCR 14; H.H. Maharajadhiraja Mahdav
Rao Jiwaji Rao Scindia Bahadur Vs. Union of India AIR 1971
D
SC 530: 1971 (3) SCR 9; State of brissa Vs. Sudhansu
Sekhar Misra AIR 19.68 SC 647: 1968 SCR 154; ADM
Jabalpur etc. Vs. Shivkant Shukla 1976 (2) SCC 521: 1976
(0) Suppl. SCR 172; K. Veeraswami Vs. Union of India 1991
(3) SCC 655: 1991 (3) SCR 189 and Marta Silva & Ors. Vs.
E
~ Piedade Cardazo & Ors. AIR 1969 Goa 94 - cited.
Quinn Vs. Leathern 1901 AC 495 - cited.
Case Law Reference:
2006 (10) Suppl. SCR 197 relied on
Paras 8,11,13,
21,24,29,
30,31,32,33
and 34
1984 (2) SCR 495 explained and relied on Paras 8,9,
11, 13, 16,
20-34
2001 (1 > sec 45
relied on ·
2006 (10) Suppl. SCR 283 relied on
Paras 9,11
Paras 9, 11
F
G
H
962
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
1995 (1) SCR 819
cited
Paras 9, 11
2000 (3) Suppl. SCR 747 cited
Para 10
1957 (1) SCR 650
cited
Para 10
B
2002 (2) SCR 661
cited
Paras 13,23,
2006 (3) SCR 864
cited
Paras 13,23
2003 (2 ) Suppl. SCR 14
cited
Paras 13, 23
1971 (3) SCR 9
cited
Paras 13, 23
c
1968 SCR 154
cited
Paras 13, 23
1901 AC 495
cited
Para 13
1976 (0) Suppl. SCR 172 cited
Paras 13, 23
D
1991 (3} SCR 189
cited
Para 13
1958 SCR 1040
relied on
Paras 13, 15,
32
(1973) 2 AWR 263
referred to
Para 15
E
1998 (2) SCR 870
referred to
Paras 17,20,
AIR 1969 Goa 94
cited
Para 23
2011 (2) SCR 1
relied on
Para 24
F
1974 (1) WLR 176
referred to
Para 24
1981 (2) SCR 1
referred to
Para 24
1976 (3) SCR 99
referred to
Para 24
G
1980 (1) SCR 769
referred to
Para 24
1989 (3) SCR 316
referred to
Para 24
1990 (3) SCR 352 .
referred to
Para 24
H
1990 (3) SCR 789
referred to
Para 24
ABHAY SINGH CHAUTALA v. C.8.1.
963
1993 (3) SCR 61
referred to
Para 24
A
1990 (3) SCR 111
cited
Para 25
2004 (3) Suppl. SCR 1006 referred to
Para 25
4 MIA 179
referred to
Para 29
B
1948 (2) All ER 995
referred to
Para 29
1967 (2) All ER 576
referred to
Para 29
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal c
No. 1257 of 2011.
From the Judgment & Order dated 8.7.2010 of the High
Court of Delhi at New Delhi in Criminal Misc. No. 915 of 2010.
WITH
Crl. A.No. 1258 of 2011
Mukul Rohtagi, U.U. Lalit, Daya Krishan Shrama, S.K.
Gupta, Amit Sahni, Anil Rathi, Monika Sharma, Ninand Laud,
D
Ranjeeta Rohtagi for the Appellant.
E
Gopal Subramanium, SG, Dayan Krishnan, Gautam
Narayan, N.A. Menon (for Arvind Kumar Sharma) for "the
Respondent.
The Judgment of the Court was delivered by
F
V.S. SIRPURKAR, J. 1. This judgment will dispose of two
Special Leave Petitions, they being SLP (Crl.) No. 7384 of
2010 and SLP (Crl.) No. 7428 of 2010. While Abhay Singh
Chautala is the petitioner in the first Special Leave Petition, the
G
second one has been filed by Shri Ajay Singh Chautala. The
question involved is identical in both the SLPs and hence they
are being disposed of by a common judgment.
2. Leave granted in both the Special Leave Petitions.
H
964
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
3. Whether the sanction under Section 19 of The
Prevention of Corruption Act (hereinafter called "the Act" for
short) was necessary against both the appellants and, therefore,
whether the trial which is in progress against both of them, a
valid trial, is common question. This question was raised
B before the Special Judge, CBI before whom the appellants are
being tried for the offences under Sections 13(1) (e) and 13(2)
of the Prevention of Corruption Act read with Section 109 of
Indian Penal Code in separate trials.
4. Separate charge sheets were filed against both the
C appellants for the aforementioned offences by the CBI. It was
alleged that both the accused while working as the Members
of Legislative Assembly had accumulated wealth
disproportionate to their known sources of income. The
charges were filed on the basis of the investigations conducted
D by the CBI. This was necessitated on account of this Court's
order in Writ Petition (Crl.) No.93 of 2003 directing the CBI to
investigate the JBT Teachers Recruitment Scam. The offences
were registered on 24.5.2004. The CBI conducted searches
and seized incriminating documents which revealed that Shri
E Om Prakash Chautala and his family had acquired movable
and immovable properties valued at Rs.1,467 crores. On this
basis a Notification came to be issued on 22.2.2006 under
Sections 5 and 6 of the DSPE Act with the consent of the
Government of Haryana extending powers and jurisdiction
F
under the DSPE Act to the State of Haryana for investigation
of allegations regarding accumulation of disproportionate
assets by Shri Om Prakash Chautala and his family members
under the Prevention of Corruption Act. A regular First
Information Report then came to be registered against Shri Om
G Prakash Chautala who is the father of both the appellants. It is
found that in the check period of 7.6.2000 to 8.3.2005, appellant
Abhay Singh Chautala had amassed wealth worth
Rs.1, 19,69,82,619/- which was 522. 79 % of appellant Abhay
Singh Chautala's known sources of income. During the check
H period, Shri Abhay Singh Chautala was the Member of the
ABHAY SINGH CHAUTALA v. C.B.I.
965
[V.S. SIRPURKAR, J.]
Legislative Assembly Haryana, Rori Constituency. Similarly, in
A
case of Ajay Singh Chautala, his check period was taken as
24.5.1993 to 31.5.2006 during which he held the following
offices:-
1.
2.3.90 to 15.12.92
MLA Vidhan Sabha,
Rajasthan
B
2.
28.12.93 to 31.11.98 MLA Vidhan Sabha,
Rajasthan
3.
10.10.99 to 6.2.2004 Member of Parliament, Lok
Sabha from Bhiwani
Constituency
c
4.
2.8.2004 to 03.11.09 Member of Parliament,
Rajya Sabha
He was later on elected as MLA from Dabwali
constituency, Haryana in November, 2009. It was found that he
had accumulated wealth worth Rs.27,74,74,260/- which was
D
339.26 % of his known sources of income. It was on this basis
that the charge sheet came to be filed.
5. Admittedly, there is no sanction to prosecute under
Section 19 of the Act against both the appellants.
E
6. An objection regarding the absence of sanction was
raised before the Special Judge, who in the common order
dated 2.2.2010, held that the allegations in the charge sheet
did not contain the allegation that the appellants had abused
F
their current office as member of Legislative Assembly and,
therefore, no sanction was necessary .
...
7. This order was challenged by way of a petition under
Section 482 Cr.P.C. before the High Court. The High Court
dismissed the said petition by the order dated 8.7.2010.
G
8. The learned Senior Counsel Shri Mukul Rohtagi as well
as Shri U.U. Lalit arguing for the appellants, urged that on the
day when the charges were framed or on any date when the
cognizance was taken, both the appellants were admittedly
H
966
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A
public servants and, therefore, under the plain language of
Section 19 (1) of the Act, the Court could not have taken
cognizance unless there was a sanction. The learned senior
counsel analyzed the whole Section closely and urged that in
the absence of a sanction, the cognizance of the offences under
B
the Prevention of Corruption Act could not have been taken. In
this behalf, learned senior counsel further urged that the
judgment of this Court in Prakash Singh Badal v. State of
Punjab [2007 (1) SCC 1) as also the relied on judgment in RS
Nayak v. A R. Antulay [1984 (2) sec 183) were not correct
c and required reconsideration and urged for a reference to a
Larger Bench.
9. Against these two judgments as also the judgments in
Balakrishnan Ravi Menon v. Union of India [2007 (1) SCC
45), K. Karunakaran v. State of Kera/a [2007 (1) SCC 59) and
D
Habibullah Khan v. State of Orissa & Anr. [1995 (2) SCC 437),
this Court had dearly laid down the law and had held that where
the public servant had abused the office which he held in the
check period but had ceased to hold "that office" or was
holding a different office then a sanction would not be
E
necessary. The learned Solicitor General appearing for the
respondent urged that the law on the question of sanction was
clear and the whole controversy was set at rest in AR Antulay's
case (cited supra) which was followed throughout till date. The
Solicitor General urged that the said position in law should not
F
be disturbed in view of the principle of staire decicis. Extensive
arguments were presented by both the parties requiring us now
to consider the question.
"'
Section 19 runs as under:-
G
"19. Previous sanction necessary for prosecution.
(1)
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
H
servant, except with the previous sanction, -
ABHAY SINGH CHAUTALA v. C.B.I.
967
[V.S. SIRPURKAR, J.]
(a)
In the case of a person who is employed in
A
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
B
connection with the affairs of a Sta.te and is
not removable from his office save by or with
the sanction of the State Government, of that
Government;
c
(c)
In the case of any other person, of the
authority competent to remove him from his
office.
(2)
Where for any reason whatsoever any doubt arises
D
as to 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, such sanction shall be given by
that Government or authority which would have been
E
competent to remove the public servant from his
office at the time when the offence was alleged to
have been committed.
(3)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973F
(a)
No finding, sentence or order passed by a Special
Judge shall be reversed or altered by a Court in
appeal, confirmation or revision on the ground of
the absence of, or any error, omission, irregularity
G
in, the sanction required under sub-section (1 ),
unless in the opinion of that court, a failure of justice
has, in fact, been occasioned thereby;
(b)
No court shall stay the proceedings under this Act
H
968
A
B
c
D
E
F
SUPREME COURT REPORTS
[2011] 10 S.C.R.
on.the ground of any error, omission or irregularity
in the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has
resulted in a failure of justice;
(c)
No court shall stay the proceedings under this Act
on any other ground and no court shall exercise the
powers of revision in relation to any interlocutory
order passed in inquiry, trial, appeal or other
proceedings.
(4)
In determining under sub-section (3) whether
the absence of, or any error, omission or
irregularity in, such sanction has occasioned
or resulted in a failure of justice the Court
shall have regard to the fact whether the
objection could and should have been raised
at any earlier stage in the proceedings.
Explanation: For the purposes of this Section, -
(a)
Error includes competency of the authority to
grant sanction;
(b)
A sanction required for prosecution includes
reference to any _requirement that the
prosecution shall be at the instance of a
specified authority or with the sanction of a
specified person or any requirement of a
similar nature."
10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior
counsel appearing on behalf of the appellants, firstly pointed
G out that the plain meaning of Section 19(1) of the Act is that
when any public servant is tried for the offences under the Act,
a sanction is a must. The learned senior counsel were at pains
to point out that in the absence of a sanction, no cognizance
can be taken against the public servant under Sections 7, 10,
H
ABHAY SINGH CHAUTALA v. C.B.I.
969
[V.S. SIRPURKAR, J.]
11, 13 and 15 of the Act and thus, a sanction is a must. The
A
learned senior counsel relied on the decision in Abdul Wahab
Ansari Vs. State of Bihar (2000 (8) SCC 500], more
particularly, paragraph 7, as also the decision in Baij Nath
Prasad Tripathi Vs. State of Bhopal [1957 (1) SCR 650]. The
plain language of Section 19(1) cannot be disputed. The
B
learned senior counsel argued that Section 19(1) of the Act
creates a complete embargo against taking cognizance of the
offences mentioned in that Section against the accused who
is a public servant. The learned senior counsel also argued that
it is only when the question arises as to which authority should c
grant a sanction that the sub-Section (2) will have to be taken·
recourse to. However, where there is no duty of any such nature,
the Court will be duty bound to ask for the sanction before it
takes cognizance of the offences mentioned under this Section.
11. As against this, Shri Gopal Subramanium, learned
D
Solicitor General, pointed out the decision in RS Nayak v. A
R. Antulay (cited supra) and the subsequent decisions in
. Balakrishnan Ravi Menon v. Union of India (cited supra), K.
Karunakaran v. State of Kera/a (cited supra), Habibullah Khan
v. State of Orissa & Anr. (cited supra) and lastly, in Prakash
E
Singh Badal v. State ofPunjab (cited supra).
12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior
CO!.msel appearing on behalf of the appellants, have no quarrel
with the proposition that in all the above cases, it is specifically
F
held that where the alleged misconduct is in some different
capacity than the one which is held at the time of taking
cognizance, there will be no necessity to take the sanction.
13. To get over this obvious difficulty, the learned senior
counsel appearing on behalf of the appellants contended that
G
the basic decision in RS Nayak v. AR. Antu/ay (cited supra)
was not correctly decided, inasmuch as the decision did not
consider the plain language of the Section which is clear and
without any ambiguity. The learned senior counsel contended
H
970
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A that where the language is clear and admits of no ambiguity,
the Court cannot reject the plain meaning emanating out of the
provision. Further, the learned senior counsel pointed out that
even in the judgments following the judgment in RS Nayak v.
A R. Antulay (cited supra) upto the judgment in the case of
s Prakash Singh Badal v. State of Punjab (cited supra) and even
thereafter, the learned Judges have not considered the plain
meaning and on that count, those judgments also do not
present correct law and require reconsideration. Another
substantial challenge to the judgment in RS Nayak v. A R.
c Antulay (cited supra) is on account of the fact that the law
declared to the above effect in RS Nayak v. A R. Antulay (cited
supra) was obiter dictum, inasmuch as it was not necessary
for the Court to decide the question, more particularly, decided
by the Courts in paragraphs 23 to 26. The learned senior
0
counsel pointed out that, firstly, the Court in RS Nayak v. A R.
Antulay (cited supra), came to the conclusion that Shri Antulay
who was a Member of the Legislative Assembly, was not a
public servant. It is contended that once that finding was arrived
at, there was no question of further deciding as to whether, the
E accused being a public servant in a different capacity, the law
required that there had to be a sanction before the Court could
take the cognizance.