# [1991] 3 S.C.R. 189

- **Citation:** [1991] 3 S.C.R. 189
- **Court:** Supreme Court of India
- **Decided:** 1991-07-25
- **Case number:** Criminal Appeal No. 400 of 1979
- **Bench:** B.C. Ray, K. Jagannatha Shetiy, Laut Mohan B Sharma, M.N. Venkatachaliah, J.S. Verma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1991-3-s-c-r-189-11211
- **Pages:** 118

## Headnote

Prevention of Corruption Act, 1947: Ss. 2, 5( l)(e), 5(2), 6( 1)(c)-
Public servant-Possession of pecuniary resources or property disproportionate to known sources of income-Prosecution after superannuation-Previous sanction-Whether necessary.
Judge of High Court/Supreme Court-Whether 'public ser.vant',
liable to prosecution under the Act-Sanctioning authority-Who is.
Sanctioning authority-Whether vertically superior in the hierc
archy in which office of the public servant exists.
D
Cl. (c) of s. 6( 1)-Whether independent of and separate from
clauses (a) and (b )-Rule of ejusdem generis-Applicability of.
Independence of Judiciary-Whether affected by application of
the Prevention of Corruption Act to Judges of High Court/Supreme
E
Court-Issuance of guidelines by Court.
Indian Penal Code, 1860: Ss. 19, 21-"Judge"-Whether includes a High Court/Supreme Court Judge- Whether 'public servant'
under s. 2 of Prevention of Corruption Act.
Constitution of India, 1950: Articles 74, 79, 121, 211, 124, 2 17,
218-Provision for initiation of proceeding for removal of a ludgeWhether a ground for withholding criminal prosecution of a Judge for
offence under s. 5( 1)( e) of the Prevention of Corruption Act, 1947.
F
Independence of Judiciary-Effect of application of Prevention of G
Corruption Act, J.947 to Judges of superior Courts.
Code of Criminal Procedure, 1973: Ss. 154, 173(2), 173(5)-
0ffence committed by public servant under s. 5( l)(e) of the Prevention
of Corruption Act, 1947-Complaint regarding-/ni1estigation ofRequirements-Police report/Charge sheet-Contents of:·
H
189
A
B
SUPREME COURT REPORTS
(1991] 3 S.C.R.
Evidence Act., 1872: S. 106-0ffence committed under s. 5( !)(e)
of Prevention of cbrruption Act, 1947-Possession of property disproportionate to known sources-Whether fact within special knowledge
of thepublic servant-Burden of proof-On whom.
Words and Phrases: "sati~facrori/y account"-Meaning of.
Statutory Interpretation: Rule of ejusdem generis- Explalned.
A complaint against the appellant, a former Chief Justice of a
High Court, was made to the CBI on which a case under s. 5(2) read
withs. 5( l)(e) of the Prevention of Corruption Act, 1947 was registered
C
on 24.2.1976. On 28.2.1976 the F.l.R. was filed in the court of Special
Judge. The appellant proceeded on leave from 9.3.1976 and retired on
8.4.1976 on attaining the age of superannuation.
The investigation culminated in the filing of charge-sheet/final
report under s. 173(2), Cr. P.C. against the appellant on 15.12.1977
D before the Special Judge.
The Charge-sheet stated that the appellant after assuming office
of the Chief Justice on 1.5.1969 gradually comme~ced accumulation of -
assets and was in possession of pecuniary resources and property, in his
name and in the names of his wife and two sons, disproportionate to his
E
known sources of income for the period between the date of his appointment as Chief Justice and the date of registration of the case, and
thereby he committed the offence of criminal misconduct under
s. S(l){e), punishable under s. 5(2) of the Prevention of Corruption Act,
1947. The Special Judge issued process for appearance of the appellant.
Meanwhile, the appellant moved the High Court under s. 482, Cr. P.C.
F to quash the said criminal proceedings.
G
The matter was heard by a Full Bench of the High Court which
dismissed the application by ~: 1 majority; but granted a certificate
under Articles 132(1) and 134( l)(c) of the Constitution in view of the
important question of law involved.
In appeal to this Court it was contended by the appellant that the
provisions of the Prevention of Corruption Act, 1947 do not apply to a
Judge of a superior Court as for such prosecution previous sanction of
an authority competent to remove a public servant as provided under
s. 6 of the Prevention of Corruption Act, 1947 is imperative and power
H to remove a Judge is not vested in any single individual authority but is
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K. VEERASWAMI v. U.0 .1.
191
vested in the

## Text

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K. VEERASW AMI
v.
A
UNION OF INDIA AND OTHERS
JULY 25, 1991
{B.C. RAY, K. JAGANNATHA SHETIY, LAUT MOHAN
B
SHARMA, M.N. VENKATACHALIAH AND J.S. VERMA, JJ.]
Prevention of Corruption Act, 1947: Ss. 2, 5( l)(e), 5(2), 6( 1)(c)-
Public servant-Possession of pecuniary resources or property disproportionate to known sources of income-Prosecution after superannuation-Previous sanction-Whether necessary.
Judge of High Court/Supreme Court-Whether 'public ser.vant',
liable to prosecution under the Act-Sanctioning authority-Who is.
Sanctioning authority-Whether vertically superior in the hierc
archy in which office of the public servant exists.
D
Cl. (c) of s. 6( 1)-Whether independent of and separate from
clauses (a) and (b )-Rule of ejusdem generis-Applicability of.
Independence of Judiciary-Whether affected by application of
the Prevention of Corruption Act to Judges of High Court/Supreme
E
Court-Issuance of guidelines by Court.
Indian Penal Code, 1860: Ss. 19, 21-"Judge"-Whether includes a High Court/Supreme Court Judge- Whether 'public servant'
under s. 2 of Prevention of Corruption Act.
Constitution of India, 1950: Articles 74, 79, 121, 211, 124, 2 17,
218-Provision for initiation of proceeding for removal of a ludgeWhether a ground for withholding criminal prosecution of a Judge for
offence under s. 5( 1)( e) of the Prevention of Corruption Act, 1947.
F
Independence of Judiciary-Effect of application of Prevention of G
Corruption Act, J.947 to Judges of superior Courts.
Code of Criminal Procedure, 1973: Ss. 154, 173(2), 173(5)-
0ffence committed by public servant under s. 5( l)(e) of the Prevention
of Corruption Act, 1947-Complaint regarding-/ni1estigation ofRequirements-Police report/Charge sheet-Contents of:·
H
189
A
B
SUPREME COURT REPORTS
(1991] 3 S.C.R.
Evidence Act., 1872: S. 106-0ffence committed under s. 5( !)(e)
of Prevention of cbrruption Act, 1947-Possession of property disproportionate to known sources-Whether fact within special knowledge
of thepublic servant-Burden of proof-On whom.
Words and Phrases: "sati~facrori/y account"-Meaning of.
Statutory Interpretation: Rule of ejusdem generis- Explalned.
A complaint against the appellant, a former Chief Justice of a
High Court, was made to the CBI on which a case under s. 5(2) read
withs. 5( l)(e) of the Prevention of Corruption Act, 1947 was registered
C
on 24.2.1976. On 28.2.1976 the F.l.R. was filed in the court of Special
Judge. The appellant proceeded on leave from 9.3.1976 and retired on
8.4.1976 on attaining the age of superannuation.
The investigation culminated in the filing of charge-sheet/final
report under s. 173(2), Cr. P.C. against the appellant on 15.12.1977
D before the Special Judge.
The Charge-sheet stated that the appellant after assuming office
of the Chief Justice on 1.5.1969 gradually comme~ced accumulation of -
assets and was in possession of pecuniary resources and property, in his
name and in the names of his wife and two sons, disproportionate to his
E
known sources of income for the period between the date of his appointment as Chief Justice and the date of registration of the case, and
thereby he committed the offence of criminal misconduct under
s. S(l){e), punishable under s. 5(2) of the Prevention of Corruption Act,
1947. The Special Judge issued process for appearance of the appellant.
Meanwhile, the appellant moved the High Court under s. 482, Cr. P.C.
F to quash the said criminal proceedings.
G
The matter was heard by a Full Bench of the High Court which
dismissed the application by ~: 1 majority; but granted a certificate
under Articles 132(1) and 134( l)(c) of the Constitution in view of the
important question of law involved.
In appeal to this Court it was contended by the appellant that the
provisions of the Prevention of Corruption Act, 1947 do not apply to a
Judge of a superior Court as for such prosecution previous sanction of
an authority competent to remove a public servant as provided under
s. 6 of the Prevention of Corruption Act, 1947 is imperative and power
H to remove a Judge is not vested in any single individual authority but is
-·
~
K. VEERASWAMI v. U.0 .1.
191
vested in the two Houses of Parliament and the President under Article
124(4) of the Constitution; that the Parliament cannot be the sanctioning authority for the purpose of s. 6 and if the President is regarded as
the authority, he cannot act independently as he exercises his powers by
.and with the advice of his Council of Ministers and the Executive may
misuse the power by interfering with the judiciary; thats. 6 applies only
in cases where there is master and servant relationship between the
public servant and the authority competent to remove him, and where
there is vertical hierarchy of public offices and the sanctioning authority
is vertically superior in the hierarchy in which office of the public
servant against whom sanction is sought exists; that no prosecution can
be launched against a Judge of a superior Court under the provisions of
the Prevention of Corruption Act except in the mode envisaged by Article
124(4) ofthe Constitution; that no law prohibits a public servant having
in his possession assets disproportionate to his known sources of income
and such possession becomes an offence only when the public servant is
unable to account for it; and that the public servant is entitled to an
opportunity by the investigating officer to explain disproportionality
between the assets and the known sources of income and the charge
sheet must contain such an averment, and failure to mention that
requirement would vitiate the charge-sheet and render it invalid and,
no offence under s. 5(1)(e) of the Act could be made out.
On the questions: (I) whether a Judge of a High Court or of the
Supreme Court is a 'public servant' within the meaning of s. 2 of
the Prevention of Corruption Act, 1947; (2) whether a Judge of the
High Court including the Chief Justice, or a Judge of the· Supreme
Court can be prosecuted for an offence under the Prevention of Corruption Act, 1947; and (3) who is the competent authority to remove a
Judge either of the Supreme Court or of the High Court from his office
in order to enable that authority to grant sanction for prosecution of
the Judge under the provisions of s. 6 of the Prevention of Corruption
Act, 1947.
Dismissing the appeal, this Court,
HELD: (Per Majority-Ray, Shetty, Shanna and Venkatachaliah,
JJ).
1. A Judge of a High Court or of the Supreme Court is a 'public
servant' within the meaning of s. 2 of the Prevention of Corruption Act,
1947.
2. Prosecution of a Judge of a High Court, including the Chief
A
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B
192
SUPREME COURT ""REPORTS
[ 1991] 3 S.C. R.
Justice, or a Judge of the Supreme Court can be launched after obtaining sanction of the competent authority as envisaged by s. 6 of the
Prevention of Corrurtion Act.
Per Verma, J . (dissenting)-
1. (i) A Judge or Chief Justice of a High Court is a Constitutional
functionary, even though he holds a public otlice and in that sence he
may be included in the wide definition of a public servant. But a public
servant whose category for the grant of sanction for prosecution is not
en~isaged by s. 6 of the Act is outside the purview of the Act, not
intended to be covered by the Act.
C
l(ii) The Prevention of Corruption Act, 1947, as amended by the
1964 amendment is inapplicable to Judges of the High Courts and the
Supreme Court.
(Per Majority-Ray, Shetty and Venkatachaliah, JJ.)
D
3.1 For the purpose of s. 6(l)(c) of the Prevention of Corruption Act, 1947, the President of India is the authority competent
to give previous sanction for prosecution of a Judge of a superior
Court.
3.2 No criminal case shall be registered under s. 154, Cr. P.C.
E
against a Judge of the High Court, Chief Justice of the High Court or
a .Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter.
3.3 If the Chief Justice of India himself is the person against
whom the allegations of criminal misconduct are received, the
F
<;overnment shall consult any other Judge or .lodges of the Supreme
Court.
3.4 There shall be similar consultation at the stage of examining
the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in
G
accordance with the advice of the Chief Justice of India.
>-
Sharma. J. (contra)
As to who is precisely the a uthority for granting previous sanction
for prosecution of a Judge is a matter which did not arise in the instant
H
case and will have to be finally decided when it directly arises. How-
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K. VEER/:X~l v. U.0 .1.
193
ever, the issue~ of removal umler Art. 124( 4) of the Constitution and
sanction under s. 6 of the Act can be combined for getting clearance
from the Parliament.
Verma. J. (dissenting)
3. Section 6 of the Act is inapplicable to Judges of High Courts or of B
the Supreme Court and such Constitutional functionaries do not {all
within the purview of the Prevention of Corruption Act, 1947.
PerB.C. Ray, J.
I. A Judge of the High Court or of the Supreme Court comes
within the definition of public servant under s. 2 of the Prevention of
corruption Act, 19-'7. and he is liable to be prosecuted under the provisions of the Act. [223E·Fl
2.1 A .Judge will be liable for committing criminal misconduct
within the meaning of s. 5( l)(e) of the Act, if he has in his possession
pecuniary resources or property disproportionate to his known sources
of incorhe for which he cannot satisfactorily account. [217B]
2.2 A Judge of a superior Court will not be immune from prosecution for criminal offences committed during the tenure of his office
c
b
under the provisions of the Act. [223F]
E
3.1 In order to launch a prosecution against a Judge of a su11erior
Court for criminal misconduct falling under s. 5( l)(e) of the Act. pre·
\'ious sanction of the authority competent to remoH a Judge, including
Chief Justice of a High Court, from his office is imperative. [217C-D; 221G]
3.2 The President of India has the power to appoint as well as to
remove a .Judge from his office on the ground of proved misbehaviour
or incapacity as provided in Article 124 of the Constitution and, therefore , he, being the authority competent to appoint and to remove a
Judge, of course. in accordance with the procedure envisaged in clauses
F
Hl and (5) of Article 124, may be deemed to be the autbroity to grant G
sanction for prosecution of a Judge under the provisions of s. 6(1)(c) in
respect of the offences provided ins. S(l)(e) of the Act. [225G-H; 226A-Bl
J.J In order to adequately protect a .Judge from frivolous prosecution and unnecessary harassment the President will consult the
Chief .Justice of India who will consider all the materials placed before H
A
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c
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194
SUPREME ~u-REPORTS -
[1991] 3 S.C.R"."'/
him and tender his ~dvice to the President for giving sanction to launch
prosecution or for filing FIR against the Judge concerned after being
satisfied in the matter. The President shall act in accordance with the
advice given by the Chief .Justice of India. [226B-C I
If the Chief Justice of India is of opinion that it is not a fit case for
grant of sanction for prosecution of the Judge concerned, the President
shall not accord sanction to prosecute the Judge. This will save the
.I udge concerned from unnecessary harassment as well as from frivolous prosecution against him. [226C)
In the case of the Chief Justice of the Supreme Court, the President shall consult such of the Judges of the Supreme Court as he may
deem fit and proper and shall act in accordance with the advice given to
him by the Judge or Judges of the Supreme Court. [226D]
3.4 In the instant case, the appellant had resigned from his
office and ceased to be a public servant on the date of lodging the f .l.R.
against him by the C.H.1. and, therefore, no sanction under s. 6(l)(c) of
the Aet was necessary. [227 A; 228C]
R.S. Nayak v. A.R. Aniulay, (1984] 2 SCR 495, referred to.
4.1 A Judge of the Supre.m.e Court as well as a Judge of the High
E
Court is a constitutional functionary and to maintain the independence
of the judiciary and to enable the Judge to effectively discharge his
duties as a judge and to maintain the rule of law, even in respect of /is
against the Central Government or the State Government, he is made
totally independent of the control and influence of the executive by
mandatorily embodying in Article 124 or Article 217 of the Constitution
F
that a Judge can only be removed from his office in (he manner provided in clauses (-l) and (5) of Article 124. [222B-D)
4.2 Power to remove by intpeachment or address, a person holding office during good behaviour, is an essential counterpart to the
independence secured to the holders of high office by making their
G
tenure orie of good behaviour instead of at pleasure. [224D-E]
4.3 A .Judge of the Supreme Court or of the High Court can only
be removed on the ground of proved misbehaviour or incapacity by an
order of the President passed after following the mandatory procedure
expressly laid down in Article 124(4) of the Constitution. Without an
H
address by each of the Houses of tht> Parliament, the President is not
K. VEERASWAMI v. U.0.J.
195
empowered under the Constitution to order removal of a Judge of the
Supreme Court or of the High Court from ·his office on the ground of
proved misbehaviour or incapacity. Therefore, the repository of this
power is not in the Pr~sident alone but it is exercised after an address by
each of the Houses of Parliament in the manner provided in Artide
124(4). [218B-H; 219A]
Union of India v. Sakalchand, AIR 1977 SC 2328 and S. P. Gupta
and Ors. v. President of India and Ors, AIR 1982SC149. referred to.
5. There is no master and servant relationship or employer ancf
employee relationship between a Judge and the l'resident of India in
whom the executive power of the Union is vested under the provisions of
Article 53 of the Constitution. [222E]
6. It is necessary to evolve some method commensurate with the
grant of sanction in cases of serious allegations of corruption and
.acquisition or the possession of disproportionate assets which the Judge
cannot satisfactorily account for or possession of property disproportionate to the sources of income of the Judge. Otherwise, it will create a
serious inroad on the dignity, respect and credibility and integrity of the
high office which a superior Judge occupies resulting in the erosion of
the dignity and respect for the high office of the Judges in the estimation
of the public. [225E-F]
7 .1 The purpose of grant of previous sanction before prosecuting
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B
c
D
E
a public servant including a Judge of the High Court or of the Supreme
Court is to protect the Judge from unnecessary harassment and frivolous prosecution more particularly to save the Judge from the biased
prosecution for giving judgment in a case which goes against the
(;overnment or its officers though based on good reasons and rule
F
of law. (2260-E]
7 .2 Frivolous.prosecution cannot be launched against a Judge for
giving a judgment against the Central· Government. or any of its officer~
inasmuch as such decision(does not amount to misbehaviour within the
meaning of Article 124 of the Constitution. (226G-H]
G
Shamsher Singh & Anr.. v. State of Punjab, [1975] l SCR 81-l and
G.K. Daphtary v. O.P. Gupta, AIR 197.l SC 1132, referred to.
Per Shetty, a1,1d Venkatacha.liah, JJ.
H
196
SUPREME COURT REPORTS
[1991] 3 S.C.R~~;;
A'
.J. The expression "public servant" as defined under s. 2 of the
Prevention of Corruption A•!, 1947 means a public servant as defined
in s. 21, I.P.C. From the very commencement of the I.P.C. "Every
Judge'' finds a place in the categories of public servant defined under s.
2 i and this expression indicates all Judges and all Judges of all Courts.
It is a general term and general term in the Act should not be narrowly
B
construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore be
excluded from the definition o.f 'public servant'. [237C; 240D; 242A-B]
c
2.1 A public servant cannot be prosecuted for offences specified in s. S of the Prevention of Corruption Act, 1947, unless there
is prior sanction under s. 6 for prosecution from the competent
~nthority, [237E]
2.2 There are two requirements for the applicability of clause (c)
of s. 6(1) to a Judge of the higher judiciary-the Judge must be a public
D
servant, and there must be an authority competent to remove him from
his office. If these two requirements are complied with. a Judge cannot
escape from the operation of the Act. [240B-CJ
2.3 The Judges are liable to be dealt with just the same way as
any other person in respect of criminal offence. It is only in taking of
E
bribes or with regard to the offence of corruption the sanction for
criminal prosecution is required. There is no law providing protection
for Judges from criminal prosecution. [252A-B]
It is not objectionable to initiate criminal proceedings against
public servant before exhausting the disciplinary proceedings, and a
F
fortiori, the prosecution of a Jud~e for criminal misconduct before his
removal by Parliament for proved misbehaviour is unobjectionable. [252D-E]
The uproved misbehaviour" which is the basis for removal of a
Judge under clause (4) of Article 124 of the Constitution may also in
certain cases involve an offence of criminal misconduct under s. S( I) of
G
the Act. But that is no ground for withholding criminal prosecution till
the Judge is removed by Parliament. One is the power of Parliament
and the other i> the jurisdiction·ota·criininal court. Both are mutually
exclusive. [251A-CJ
J,J .For the purpose of s. 6(l)(c}of the Act, the President of India
H is the authority competent to give previous sa.nction for the prosecution
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K. VEERASWl\MI ''· U.0.1.
197
of a Judge of the Supreme Court and the High Court.
3.2 Section 6(1) brings within its fold all the categories of public
servants as defined ins. 21 of the I.P.C. Clauses (a) and (b) would cover
A
the cases of public· servants who are employed in connection with the
affairs of the Union or State and are not removable from their office
save by or with the sanction of the respective government. Clause (c)
B
states that in the case of any other person the sanction would be of the
authority competent to remove him from his office. [238E-F]
The provisions of clanses (a) and (b) of s. 6 [(!)] cover certain
categories of public servants and the 'other' which means remaining
categories are brought within the scope of clause (c). Clause (c) is independent of and separate from the preceding two clauses. The structure
of the section does not permit the applicability of the rule of ejusdem
generis. [240A-B]
c
3.3 The application of the ejusdem generis rule is only to general
word following words which are less general, or the general word fol-
[
lowing particular and specific words of the same nature. In such a case,
the general word or expression is to be read as comprehending only
things of the same kind as that designated by the preceding specific
-...f
words or expressions. The general word is presumed to be restricted to
the same genus as those of the particular and specific words. [239F-G I
3.4 The construction which would promote the general legislative
purpose underlying the prov~sion, is to be preferred to a construction
which would not. [247 A]
--"
If the literal meaning of the legislative language used would lead
E
to results which would defeat the purpose of the Act, the Court would
F
be justified in disregarding the literal meaning and adopt a liberal
construction which effectuates the object of the legislature. [247 A-Bl
S.A .. Venkataraman v. The State, [1958] SCR 1040 and M.
Narayanan v. State of Kera/a, [1963] 2 Suppl. SCR 724, referred to.
Craies on Statute Law, (6th Edn. p. 531) referred to.
3.5 In view of the composition of Parliament, ihe nature of transacting b1:~iness or proceeding in each House, the prohibition by Article
G
121 on discussion with respect to the conduct of any Judge of the
Supeme Court or of a High Court, in the discharge of his duties except
H
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198
SUPREME COURT REPORTS
I 1991] 3 S.C.R.
upon a motion for presenting an ~ddress to the President praying for his
removal, the Parliament cannot be the proper authr,rity for granting
sanction for the prosecution of a .Judge, That does not, however, follow
that the Judges of superior Courts are entitled to be excluded from the
scope of the Act. [245C-F]
3.6 Section 6 requires to be liberally construed. It is not a penal
provision but a measure of protection to public servants in the penal
enactment. It indicates the authorities without whose sanction a public
servant cannot be prosecuted. It is sufficient that the authorities prescribed thereunder fall within the fair sense of the language of the
section. [247B-C]
The expression "the authority competent to remove" used in
s. 6(1)(c) is to be construed to mean also an authority without whose
order or affirmation the public servant cannot be removed. The order of
the President for removal of a Judge is mandatory. The motion passed
by each House of Parliament with the special procedure prescribed
D
under Art. 124(4) will not proprio vigore operate against the Judge. It
will not have the consequence of removing the Judge from the office
unless it is followed by an order of the President. Clause (4) of Art. 124
is in the negative terms. The order of the President is sine qua non for
removal of a Judge. The President alone could make that order. [247C-E, 248C]
E
3. 7 The relationship of master and servant as is ordinarily underF
stood in common law does not exist between the Judges of higher
judiciary and the Government. The Judges are not bound nor do they
undertake to obey any order of the Government within the scope of
their duties. Indeed, they are not Judges if they allow themselves to be
guided by the Government in the performance of their duties. [239B-D]
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Union of India v. H.S. Seth, [1978] 1SCR423, referred to.
3.8 It is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public
servant should be vertically superior in the hierarchy in which the office
G of the public servant exists. There is no such requirement under s. 6 of
the Act. The power to give sanction for prosecution can be conferred on
any authority. Such authority may be of the department in which th<;.
,,__
public servant is working or an outside authority. All that is required is
.that the authority must be in a position to appreciate the materials
collected against the public servant ti' judge whether the prosecution
H contemplated is frivolous or speculative. [249B-C]
K. VEERASWAMI v. U.0.1.
199
R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183, distinguished.
The President is not an outsider so far judiciary is concerned. He
appoints the Judges of the High Court and the Supreme Court in exercise of his execntive powers. [249E]
A
Shamsher Singh v. State of Punjab, ]1975] l SCR 365 and S.P.
jJ
Gupta v. Union of India, [1982] 2 SCR 365, referred to.
Parliament has no part to play in the matter of appointment of
Judges except that the Executive is responsible to the Parliament. [249G-HJ
3.9 In the .instant case, the view taken by the High Court. that
no sanction for prosecution of the appellant under s. 6 of the Act
was necessary since he had retired from the service on attaining
the age of superannuation and was not a public servant on the date
of filing the charge-sheet, is unassailable. The question is no longer
res integra. [254G-H; 255CI
S.A. Venkataraman v. The State, [19581SCR1040; C.R. Bansi v.
State of Maharashtra, [19711 3 SCR 236 and K.S. Dharmadatan v.
Central Government & Ors., [197913 SCR 832, referred to.
R.S. Nayak & Ors v. A.R. Antulay, [198412 SCR 183, referred
to.
4. l There are various protections afforded to Judges to preserve
the independence of the judiciary. They have protection from civil
liability for any act done or ordered to be done by them in discharge
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of their judicial duty whether or not such judicial duty is performed
within the limits of their jurisdiction, as provided under s. I of Judicial
F
Officers Protection Act, 1850. Likewise s. 77, I.P.C. gives them protection from criminal liability for an act performed judicially. A discussion
on the conduct of the Judges of the Supreme Court and the High Courts
in the discharge of their duties shall not .take place in Parliament or in
the State Legislatures, as envisaged by Articles 121 a_nd 211 of the Constitution. The Supreme Court and the High Courts have been constituted
G
as Courts of Record with the power to punish for committing contempt
as laid down by Articles 129 and 215. The Contempt of Courts Act,
1971 provides power to t"oke civil and crim_inal contempt proceedings.
The Executive is competent to appoint the Judges but not empowered to
remove them. The power to remove is vested in Parliament by the
process anal()gous to impeachment as envisaged by Article 124 of the
H
Constitution. [25IE-H; 242EJ
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[1991) 3 S.C.R.
~.2 Previous sanction of the competent authority as contemplated
by s. 6 is only to protect the honest public servants from frivolous and
vexatious prosecution. The comr.etent authority may refuse sanction for
prosecution if the offence alleged has no material to support or it Is
frivolous or intended to harass the honest officer. But he is duty bound
to grant sanction if the material collected lend credence to the offence
complained of. The discretion to prosecute a public servant is taken
away from the prosecuting agency and is vested in the authority competent to remove the public servant. The latter would be in a better
position than the prosemting agency to assess the material collected in a
dispassionate and reasonable manner and determine whether or not the
sanction for prosecution deserves to be granted. [237F-G; 238A-C I
4.3 The apprehension, that the Executive being the largest litigant
i; likely to misuse the power to prosecute the Judges, in our overlitigious society is rot unjustified or unfounded. The Act provides certain safeguards like s. 6 and trial by the court which is independent of
the Executive. But these safeguards may not be adequate. Any complaint against a Judge and its investigation by the CBI, if given publicity,
will have a far reaching impact on the Judge and the litigant public. The
need, therefore, is a judicious use of taking action under the Act. Care
should be taken that honest and fearless Judges are not harassed. They
should be protected. [252G-H; 253A-CI
5.1 There is no need for a separate legislation for the Judges. The
Act is not basically defective in its application to judiciary. All that is
required is to lay down certain guidelines lest the Act may be misused.
This Court being the ultimate guardian of rights of people and independence of the judiciary will not deny itself the opportunity to lay
down such guidelines. This Court is not a Court of limited jurisdiction
of only dispute settling. Almost from the beginning, this Court has been
a law maker, albiet, 'interstitial' law maker. Indeed the Court's role
today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas. [253E-G]
5.2 The Chief Justice of India is a participatory functionary in
G
the matter of appointment of Judges of the Supreme Court and the
High Courts; he is to be consulted by the President of India even for
transfer of a Judge from one High Court to another; and question of age
of a Judge of a High Court shall be decided by the President after
consulting him. The Chief Justice of India being the head of the
Judiciary is primarily concerned with the integrity and impartiality of
H
the judiciary. Hence it is necessary that the Chief Justice of India is not
K. VEERASWAMI v. U .0.1.
20 I
kept out of the picture of any criminal case contemplated against a
Judge. He would be in a better position to give his opinion in the case
and consultation with the Chief .Justice of India would be of immense
assistance to the Government in coming to the right conclusion. [253H; 254A-B I
A
5.3 It is the responsibility and duty of this Court to apply the
existing law in a form more conducive to the independence of the
B
Judiciary. [253G]
5.4 In the instant case then the Chief Justice of India was
requested to give his opinion whether the appellant could be proceeded
under the Act. It was only after the Chief Justice expressed his views
that the appellant could be proceeded under the provisions of the Act,
the case was registered against him. [2530 I
6.1 No criminal case shall be registered under s. 154, Cr. P.C.
against a Judge of a High Court, Chief Justice of a High Court or a
Judge of the Supreme Court unless the Chief Justice of India is
consulted in the matter. [254C I
6.2 Due regard must be given by the Government to the opinion
expressed by the Chief Justice of India. If he is of opinion that it
is not a fit case for proceeding under the Act, the case shall not be
registered. [2540 I
6.3 If the Chief Justice of India himself is the person against
whom the allegations of criminal misconduct are received, the Govern-
·-"""'
men! shall consult any other Judge or Judges of the Supreme Court.
c
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There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and
appropriate that the question of sanction be guided by and in accordF
ance with the advice of the Chief Justice of India. [2540-E]
The apprehension that the Act is likely to be misused by the
Executive for collateral purpose _would thus be allayed. [254E]
7. It is inappropriate to- state that conviction and sentence are no
G
bar for the Judge to sit in the Court. If a Judge is convicted for the
offence of criminal misconduct or any other offence involving moral
turpitude, it is but proper for him to keep himself away from the Court.
He must voluntarily withdraw from judicial work and await the outcome
of the criminal prosecution. If he is centenced in a criminal case he
should forthwith tender his resignation unless he obtains stay of his
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SUPREME COURT REPORTS
[1991] 3 S.C.R.
A
conviction and sentence. He shall not insist on his right to sit on the
Bench till he is cleared from the charge by a Court of competent
jurisdiction. [250D-F]
The judiciary has no power of the purse or the sword. It survives
only by public confidence and it is important to the stability of the
B
society that the confidence of the public Is not shaken. The Judge whose
character is clouded and whose standards of morality and rectitude are
in doubt may not have the judicial Independence and may not command
confidence of the public. He must voluntarily withdraw ftom the judicial work and administration. [250F -GI
c
Jackson's Machinery of Justice by J.R. Spencer, 8th Edn. pp.
369· 70 referred to.
8.1 Section S(l)(e) of the Act creates a statutory offence which
must be proved by the prosecution. The first part of the Section relates
to the proof of assets possessed by the public servant. It is for the
D
prosecution to prove that the accused or any person on his behalf has
been in possession of pecuniary resources or property di•proportionate
to his known sources of income. When that onus is discharged by the
prosecution the offence of criminal misconduct is attributed to the
public servant. However, it is open to him to satisfactorily account for
such disprop~rtionality of the assets. But it does not mean that there is
E rio offence till· the public servant is able to account for th.e excess of
assets. If one possesses assets beyond his legitimate means, it goes
without saying that the excess is out of ill-gotton gain. [259D-E; 260E-F]
8.2 It is for the public servant to prove the source o~ income or
the means by which he acquired the assets. That is the substance of
F
clause (e) of s. 5(1). The ~ction makes available the statutory defence
which must be proved by the accused. It is a restricted defence that is
accorded to the accused to account for the disproportionality of the
assets over the income. But the legal burden of proof placed on the
accused is not so onerous as that of the prosecution. _However. it is just
not throwing some doubt on the prosecution version. [260F-G, 259E-F]
G
~
The legislature has advisedly used the expression "satisfactory
account". The emphasis must be on the word "satisfactorily". That
means the accused has to satisfy the court that his explanation is worthy
of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused, however,
H
could discharge that burden of proof "on the balance of probabilities"
-I ,,
K. VEERASWAMI v. U.0.1.
203
either from the evidence of the prosecution and/or evidence from the
defence. l259F-G]
8.3 Parliament is competent to place the burden on certain
aspects on the accused as well and particularly in matters "especially
within his knowledge". (s. 106 of the Evidence Act). Adroitly the prosecution cannot, in the very nature of things, be expected to know the
affairs of a public servant found in possession of resources of property
disproportionate to his known sources of income. It is for him to
explain. Such a statute placing burden on the accused cannot be
regarded as unreasonable, unjust, or unfair. Nor can it he regarded as
contrary to Article 21 of the Constitution. The principle that the burden
of proof is always on the prosecution and never shifts to the accused is
not a universal rule to be followed in every case. The principle is applied
only in the absence of statutory provision to the contrary. [260A-C] ·
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Woolmington v. Director of Public Prosecution, [1935] A.C. 462;
C.S.D. Swamy v. The State, [1960] 1 SCR 461; Surajpal Singh v. The
State of U.P., [1961] 2 SCR 971; Sajjan Singh v. The State of Punjab,
D
[1964] 4 SCR 630; Rig v. Hunt, [1986] 3 WLR 1115 and Maharashtra v.
K K. S. Ramaswamy, [ 1978] l SCR 274, referred to.
State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, [1981]
3 SCR 675, referred to.
E
9.1 To state that after collection of all material, the investigating
officer must give an opportunity to the accused and call upon him to
account for the excess of the assets over the known sources of income
and then decide whether the accounting is satisfactory or not, would be
elevating him to the position of an enquiry officer or a judge. He is not
holding an enquiry against the conduct of the public servant or deF
termining the disputed issues regarding the disproportionality between
the assets and the income of the accused. He just collects material from
all sides and prepares a report which he files in the Court as a chargesheet. The investigating officer is only required to collect material to
find out whether the offence alleged appears to have been committed.
lo the course of the investigation, he may examine the accused.
G
Indeed, fair investigation requires that the accused should not be
kept in darkness. He should he taken into confidence if he is willing to
cooperate. [261B-E]
10.1 The charge-sheet is nothing but a final report of the police
officer under s. 173(2) of the Cr. P.C. Section 173(2) provides that on H
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SUPREME COURT REPORTS
[ 1991] 3 S.C.R.
completion of the investigation the police officer investigating into a
cognizable offence shall submit a report, which must be in the form
prescribed by the State Government. The statutory requirement of the
report under s. 173(2) would be complied with if the various details
prescribed therein are included in the report and it accompanies all the
documents and statements of witnesses as required by s. 172(5) Cr.
P.C. Nothing more need be stated in the report of the investigating
officer. It is also not necessary that all the details of the offence must he
stated. The details of the offence are required to be proved to bring
home the guilt of the accused at a later stage in the course of the trial of
the case by adducing acceptable evidence. [261E-H; 262A-C]
Satya Narain Musadi and Ors. v. State of Bihar, [1980] 3 SCC
152, referred to.
10.2 In the instant case, the charge sheet contained all the
requirements of s. 173(2), Cr.P.C. It stated that the investigation
showed tliat between l.5.1969 and 24.2.1976 the appellant had been in
D possession of the pecuniary resources and property in his own name and
in the names of his wife and two sons, which were disproportionate to
the known sonrces of income over the same period and he cannot
satisfactorily account for such disproportionate pecuniary resources
and property. The details of properties and pecuniary resources of the
appellant also were set.out in clear terms. No more was required to be
E stated in the charge sheet. It was fully in accordance with the terms of
s. 173(2), Cr.P .C. and clause (e) of s. 5(l)(e) of the Act. {262C-E]
11. The society's demand for honesty in a Judge is exacting and
absolute. The standards of judicial behaviour, both on and off the Bench,
are normally extremely high. For a judge to deviate from such standards
F of honesty and impartiality is to betray the trust reposed on him. No
excuse or no legal relativity can condone such betrayal. From the standpoint of justice the size of the bribe or scope of corruption cannot be the
scale for measuring a judge's dishonour. A single dishonest judge not
only dishonours himself and disgraces his office but jeopardises the
integrity of the entire judicial system. [262F-H; 263AJ
G
A judicial scandal has always been regarded as far more deplorH
able than a scandal involving either the Executive or a member of the
Legislature. The slightest hint of irregularity or impropriety in the
Court is a cause for great anxiety and alarm. [263A-B]
Per Sharma, J.:
l. The expression "public servant" used in the Prevention of
K. VEERASWAM! v. U.O.l.
205
Corruption Act, 1947 is undoubtedly wide enough to denote every
Jlidge, iildliding the Judges of the High Courts and the Supreme Court. IWD J
2.1 Section 2 of the Act adopts the definition of "public servant"
as given ins. 21, I.P.C. which includes "Every Judge". If the legislatiire had intended to exclude Judges of the High Courts and the
Sitprenie Court from the field of s. 5 of the Act, it could have said so in
ilriambiguous ternis insieatl of adopting the wide meaning of the expression "public servant" as given in the Indian Penal Code. [266E-F]
2;2 Nb person is above the law. In a proceeding tinder Article 124
of the Constitution, a Judge can merely be removed from his office. He
cannot be conviCted aitd puriished. In a case where there is a positive
finding recorded iti such a proceeding against the Judge and on that
groiind he is removed from his office, it cannot be said that he will
escape the criminal liability. hi a civilised society the law cannot be
assumed to be leading to such disturbing results. [265G; 266A-B]
A
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2.3 It is not safe to assume that the Prevention of Corruption Act
D
intended to make in its application any discrimination between the
lower and ihe higher judiciary. There cannot be any rational ground on
the basis of which a member of a higher judiciary may be allowed to
escape prosecution while in identical circumstances a member of the
subordinate judiciary is tried and convicted. Such an interpretation of
the Act will militate againsi its constitutional validity and shoμld not,
E
iiietefore, be preferred. [265C,E]
3.1 The power to remove a High Court Judge from his office does
_...:l
exist and has to be exercised In appropriate circumstances according to
the provisions of Article i24 of the Constitution.