# M. KARUNANIDHI v. UNION OF INDIA

- **Citation:** [1979] 3 S.C.R. 254
- **Court:** Supreme Court of India
- **Decided:** 1979-02-20
- **Case number:** Criminal Appeal Nos. 270271 of 1977
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-karunanidhi-v-union-of-india-7791
- **Pages:** 37

## Headnote

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254
M. KARUNANIDHI
v.
UNION OF INDIA
February 20, 1979
J.Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWALIA,
S. MURTAZA, FAZAL ALI AND R. S. PATHAK; JJ.J
Tamilnadu Public Men (Cmninal MlscO{lduct) Act, 1973-Whether inconsistent with the provisions of Code of Criminal Procedure 1898, Prevention
of Corruption Act 1947 & Criminal Law (Atnendment) Act, 1952-Art. 254
of Co11sti111tion of India-Inconsistency between laws 1nade by Parliament and
lalvs 1nade by legislature of states-Effect of.
Constitution of India 1950-Arts. 164 & 161-Nature, constitu/jonal position and status of Minister Dr Chief Minister.
Indian Penal
Code 1869-S. 21(12)-Public servant & Criminal Procedure Code 1898-S. 199(2)-'0ther public servant'-Scope of-Chief Minister
whether 'public servant'.
Words & Phrases-'in the service or pay of the Government'-S. 21(12)(a)
!PC-Meaning of.
In December 1973, the Madras Legislature passed an Act known as
the
Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 after obtaining the
assent of the President. The State Act was amended by Act 16 of 1974 and
the President's assent was received on April 10, 1974. The provisions of the
State Act were brought into force with effect from May 8, 1974.
The State
Act was repctlled and the President's assent to the repealing Act was given on
September 6, 1977.
l'he Act provided for the investigation in respect of a complaint of crimin::iJ misconduct against any public man by a Commissioner or the Additional
Commissioner of Inquiries appointed for this purpose. The
word
'public
man' had been given a specific connotation in s. 2(c) of the Act and clearly
excluded a Government servant.
The appellant was the former Chief Minister of the State of Tamilnadu.
On June 15, 1976 the Chief Secretary to the State Government requested the
Central Bureau of Investigation to make a detailed investigation into certain
allegations tht:Jt the appellant and others were alleged to have abused their
official position in the matter of purchase of wheat from Punjab. With the
State Governor's sanction a charge sheet was filed after investigation for the
prosecution of the appellant under ss. 161, 468 and 471 IPC and s. 5(2) read
with S. 5(1) (d) of the Prevention of Corruption Act for allegedly having
derived pecuniary advantage to the extent of Rs. 4 to ~ lakhs for passing
favourable orders in respect of some firms.
The appellant applied for discharge under s. 239 Cr. P.C. on the
ground
that the prosecution against him suffered from various legal and constitutional
infirmities.
On the application being rejected, the appellant applied to the
High Court' for quashing the proceedings and for setting aside the order of the
Special Judge refusing to
discharge
him. The High Court rejected the
applications.
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M. KARUNANIDHI v. UNION
255
In the appeal! to this Court, it was contended on behalf of the appellant :
A
( 1) Even though the State Act was repealed, the provisions of the Central
Acts having themselves been protanto repw!ed by the State Act when it was
passed could not be pressed into service for the purpose of prosecuting the
appellant unleM these provisions were re-enacted by the appropriate legisla·
ture.
(2) It was contended that even assuming that the State Act had ceased to
exist and the Central Acts applied, the appellant cannot be prosecuted under
any of the sections of the Penal Code or the Corruption Act, becallSe by virtue
of the position -that the appellant enjoyed as Chief Minister, there was
no
relationship of master and servant between him and the Government and he
was acting as a constitutional functionary, and therefore could not be described
as a .'public servant' as contemplated by s. 21(12) 0£ the Penal Code.
(3) The provisions contained in the State Act run counter to those of the
Central Acts in respect of the following matters; (a) The procedure
for
investigation of- the offences by a Central Agency as contemplated
by
the
Corruption Act b dispensed with an

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254
M. KARUNANIDHI
v.
UNION OF INDIA
February 20, 1979
J.Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, N. L. UNTWALIA,
S. MURTAZA, FAZAL ALI AND R. S. PATHAK; JJ.J
Tamilnadu Public Men (Cmninal MlscO{lduct) Act, 1973-Whether inconsistent with the provisions of Code of Criminal Procedure 1898, Prevention
of Corruption Act 1947 & Criminal Law (Atnendment) Act, 1952-Art. 254
of Co11sti111tion of India-Inconsistency between laws 1nade by Parliament and
lalvs 1nade by legislature of states-Effect of.
Constitution of India 1950-Arts. 164 & 161-Nature, constitu/jonal position and status of Minister Dr Chief Minister.
Indian Penal
Code 1869-S. 21(12)-Public servant & Criminal Procedure Code 1898-S. 199(2)-'0ther public servant'-Scope of-Chief Minister
whether 'public servant'.
Words & Phrases-'in the service or pay of the Government'-S. 21(12)(a)
!PC-Meaning of.
In December 1973, the Madras Legislature passed an Act known as
the
Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 after obtaining the
assent of the President. The State Act was amended by Act 16 of 1974 and
the President's assent was received on April 10, 1974. The provisions of the
State Act were brought into force with effect from May 8, 1974.
The State
Act was repctlled and the President's assent to the repealing Act was given on
September 6, 1977.
l'he Act provided for the investigation in respect of a complaint of crimin::iJ misconduct against any public man by a Commissioner or the Additional
Commissioner of Inquiries appointed for this purpose. The
word
'public
man' had been given a specific connotation in s. 2(c) of the Act and clearly
excluded a Government servant.
The appellant was the former Chief Minister of the State of Tamilnadu.
On June 15, 1976 the Chief Secretary to the State Government requested the
Central Bureau of Investigation to make a detailed investigation into certain
allegations tht:Jt the appellant and others were alleged to have abused their
official position in the matter of purchase of wheat from Punjab. With the
State Governor's sanction a charge sheet was filed after investigation for the
prosecution of the appellant under ss. 161, 468 and 471 IPC and s. 5(2) read
with S. 5(1) (d) of the Prevention of Corruption Act for allegedly having
derived pecuniary advantage to the extent of Rs. 4 to ~ lakhs for passing
favourable orders in respect of some firms.
The appellant applied for discharge under s. 239 Cr. P.C. on the
ground
that the prosecution against him suffered from various legal and constitutional
infirmities.
On the application being rejected, the appellant applied to the
High Court' for quashing the proceedings and for setting aside the order of the
Special Judge refusing to
discharge
him. The High Court rejected the
applications.
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M. KARUNANIDHI v. UNION
255
In the appeal! to this Court, it was contended on behalf of the appellant :
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( 1) Even though the State Act was repealed, the provisions of the Central
Acts having themselves been protanto repw!ed by the State Act when it was
passed could not be pressed into service for the purpose of prosecuting the
appellant unleM these provisions were re-enacted by the appropriate legisla·
ture.
(2) It was contended that even assuming that the State Act had ceased to
exist and the Central Acts applied, the appellant cannot be prosecuted under
any of the sections of the Penal Code or the Corruption Act, becallSe by virtue
of the position -that the appellant enjoyed as Chief Minister, there was
no
relationship of master and servant between him and the Government and he
was acting as a constitutional functionary, and therefore could not be described
as a .'public servant' as contemplated by s. 21(12) 0£ the Penal Code.
(3) The provisions contained in the State Act run counter to those of the
Central Acts in respect of the following matters; (a) The procedure
for
investigation of- the offences by a Central Agency as contemplated
by
the
Corruption Act b dispensed with and is instead invested in · a Commissioner
appointed under the State Act. (b) The provisions under the Prevention of Corruption Act, regarding the grant of sanction under s. 197 of the Code to the
accused is given a complete go by and instead a Commissioner is appointed
to hold a regular inquiry for himself and then to submit his report. An accused
who has to be tried under the State Act b thus · deprived of the protection
afforded to every Government servant regarding grant of a sanction by the
appointing authority. Therefore the protection if any, given by the State Act
is purely illusory, and
(4) By virtue of the fact that the State Act has obtained the assent of the
President, it will be deemed to be a dominant legislation, and therefore it
would over-rule the Central Acts.
Dismise:ing the appeal!,
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HELD : 1. The scheme of the Constitution is a scientific and equitable disF
tribution of legislative powers between Parliament and the State Legislatures.
First, regarding the matters contained in List I, i.e. the Union List to the
SevCnth Schedule, Parliament alone is empowered to legislate and the
State
Legislatures hal'e no authority to make any law in respect of the Entries contained in Li!t I. Secondly, so far as the Concurrent List is concerned, both
Parliament and the State Legislatures are entitled to legislate in regard to any
of the Entries appearing therein, but ·that is subject to the condition laid down
G
by Art. 254(1). Thirdly, so far as the matters in List II, i.e. the State List are
·concerned, the State Legislatures alone are competent to legislate on "them and
only under certain conditions Parliament can do so. [263 D-E]
2. In such matters repugnancy may result from the following circums·
tances :-
(i) Where the provisions of a Central Act and a State Act in the Concurrent List arC fully inconsistent and are absolutely irreconciliable. the Central
c\ct will prevail and the State Act will become void in view of the repugnancy.
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SuPREME COURT REPORTS
(1979] 3 s.c.R.
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(ii) Where however a law passed by the State comes into collision with a
law passed by Parliament on an Entry in the Concurrent List, the State Act
shall prevail to the extent of the repugnancy and the provisions of the Central
Act would become void provided the State Act has been passed in accordance
with cl. (2) of Art. 254.
(iii) \\''here a law passed by the State legislature while· being substantially
B
within the scope of the entries in the State List entrenches upon any of the
Entries in the C..e.ntral List the constitutionality of the lay may be upheld
by
invoking the doctrine of pith and substance if on an analysis of the provisions
of the Act it appears that by and large the law falls within the four corners of
the State List an entrenchment, if any, being purely incidental or jnconsequential.
C
(iv) Where, however, a law made by the State Legislature on a subject
covered by the Concurrent List is inconsistent with or repugnant to a previous
law made by Parliament, then such a law can be protected by obtaining the
assent of the President under Art. 254(2) of the Constitution.
The result of
obtaining the assent of the President would be that so far as the State Act is
concerned, it will prevail in the State and over-rule the provisions of the Central Act in their applicability to the State only. Such a state of
affairs will
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exist only until Parliament may at any time make a law adding to, or amending,
varying or repealing the law made by the State Legislature under the provisO'
to Art. 254. [263 F-264 DJ
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3. A careful analysis, therefore, of the various provisions of the State ... '\.ct
leads to the irresistible inference that the State Act was passed 'vith a view t()
afford sufficient protection to a public man by enjoining a summary inquiry or
investigation by a high and independent Tribunal of the status of a High Court
Judge or a Senior District Judge to instil confidence in the people and to prevent public men from being prosecuted on false, frivolous and vexatious allegations. Although the ingredients of criminal misconduct as defined in s. 5(1)-
( d) of the Corruption Act are substantially the same in the State Act as in the
Central Acts but here also the, punishment is much severer in the case of the
State Act than the one contained in the Central Acts. It is, therefore, manifest
that the State Act does not contain any provision which is repugnant to the
Central Acts, but is a sort of complementary Act which runs pari passu
the
Central Act. [270 . G-271 A]
4. Prima facie, there does not appear to be any inconsistency between the
State Act and the Central Acts.
Before any repugnancy can arise, the follo\ving conditions must be satisfied :
(i) That there is a clear and direct inconsistency between the Central Act
and the State Act; (ii) that such an inconsistency is absolutely irreconcilable;
(iii) that the inconsistency between the provisions of the two Acts is of such
a nature as to bring the hvo Acts into direct collision with each other ::ind a
situation is reached where it is impossible to obey the one without disobeying
the other. [272D-E]
5. ( 1) In order to decide the questions of repugnancy it must be shown
tha.t the two enactments contain inconsistent and irreconcilable provisions~
,
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M. KARUNANIDHI V. UNION
257
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so that they cannot stand together or operate in the same field; (2) that there
can be no repeal by implication unless the inconsistency appears on the face
of the two statutes; (3) that where the two statutes occupy a particular field,
but there is room or possibility of both the statutes operating in the same field
without coming into collision with each other, no repugnancy results; ( 4) that
where there is no inconsistency but a statute occupying the same field seeks
to create distinct and separate offences, no question of repugnancy arises and
both the statutes continue to operate in the same field. [278 F·H]
•
•
Hu111e v. Palmer, 38 CLR 441; Union Steamship Co. of New Zealand v.
Comn1onwealth,
36 CLR 130; Clyde Engineering Co. v. Cowburn, 37
CLR
466; Ex. Porte McLean, 43 CLR 472; Zavarbhai Amaidas v. State of Botnbay,
,,l [1955] I SCR 799; Ch. Tika Ramji & Ors. etc. v. The State of U.P. & Ors.
~
[1956] SCR 393 Shyamakant Lal v. Rambhajan Singh, 1939 FCR 188;
Om
'>
Prakash Gupta v. State of U.P., [1957] SCR 423; Deep Chand v. State of UP &
Ors. [1959] 2 Supp. SCR 8, Megh Raj & Ors. v. Allah Rakhia &
Ors. AIR
1942 FC 27; State of Orissa v. M. A. Tulloch & Co. [1964] 4 SCR 461;
T. S. Balliah v. T. S. Rangochari, [1969] 3 SCR 65; referred to.
Colin Heward's Australian Federal Constitution
Law 2nd Edn. Nicholas
i\.ustralian Constitution 2n<l Edn. p. 303 referred to.
There can be no doubt that the State Act creates distinct and
separate
offences with different ingredients and different punishments and it does not
in any way collide, with the Central Acts. On the other hand, the State Act
itself permits the Central Act, namely, the Criminal Law (Amendment) Act
to come to its aid after an investigation is completed and a report is gubmitted
by the Commissioner or the Additional Commissioner. [279 A-B]
6. Doubtless, the State Act is the dominant legislation but there
are
no
provisions in the State Act which are irreconcilably or directly inconsistent
with the Central Acts so as to over·rule them. f279 Cl
The original s. 29 of the State Act underwent an amendment which
was
brought about by Tamil Nadu Act l 6 of 1974 which substituted a new s. 29
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~ for the old one. This amendment received the assent of the President on 10th
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April, 1974 and was published in the Tamil Nadu Government Gazette Extraordinary, dated 16 April, 1974. Although the State Act was passed
as
far
-·
back as 30 December, 1973 it feceived the' assent of the President on the
10
April, 1974 that is, on the same date as Act 16 of 1974. The Act was how-
•
~ver brought into force on the 8 May, 1974 when. the new s. 29 which had
:tlready replaced the 'old section and had become a part of the statute.
There~
fore, for all intents and purposes the State Act cannot be read in isolation, but
has to be interpreted in conjunction with the express language contained in
s. 29 of the State Act. The legislature has in unequivocal terms expressed the
intention that the State Act which was undoubtedly the dominant legislation
would only be "in addition to and not in derogation with any other law for the
time being in force" which manifestly includes the Central Acts, namely, the
Indian Penal Code, the Corruption Act and the Criminal Law (Amendment)
Act. Thus, the Legislature about a month before the main Act came
into
force clearly declared its intention that there, ~ou1d be no question
of the
State Act colliding with the Central Acts referred to above. The second part
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258
SUPREME COURT REPORTS
[1979] 3 s.c.R.
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of s. 29 also provides that nothing contained in the State Act shall exempt any
public man from b'eing proceeded with by way of investigation or otherwise
under a proceeding instituted against him under the Central Acts.
It is, rhere·
fore, clear that in view of this clear intention of the legislature there can be no
room for any argument that the State Act was in any way repugnant to the
Central Acts. [279 D-280 DJ
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7. The provisions of s. 29 would be presumptive proof of the
fact
that
there is no repugnancy between the State Act and the C1:ntral Ac.;ts nor did
either the legislature or the· President intend to create any repugnancy beh1i'een
these Acts as a result of which the criticism regarding the repugnancy is com~
•
pletely obliterated in the instant case and we,, therefore, hold that the State
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legislature never intended to occupy the same field as covered by the Central......_ "-
Acts. [281 BJ
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8. So far as the first part of cl. (12) (a) is concerned,
namely 'in the
service of the Government undoubtedly signifies a relationship of master and
servant where the employer employs the employee on the basis of a salary or remuneration. However, the second limb of the clause, 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude so as to include
within its ambit even a public servant who may not be a regular employee
receiving salary from his master.
A Minister or a Chief Minister
will
be
clearly covered by the said expression. [282 E-F]
A careful analysis of the meanings assigned to the word 'pay' in the various
dictionaries an<! the texts would clearly reveal that the expression 'in the pay
of' connotes that a person is getting salary, compensation, wages or any amount
of tnoney. This by itself however does not lead to the inference that a relationship of master and servant must necessarily exist in aII cases where a person
is paid salary. [283 G-HJ
Shorter Oxford English Dictionary; Websters Third New International Dictionary : Websters New World Dictionary : Words a.nd
Phrases, Permanent Edition Vol. 31A
p,
176.
Venkataramaya's
Law Lexicon Vol. 11 p. 1122. Corpus Juris Secundum "\lol. 70 p. 200;
referred to.
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9. By virtue of the prov1s1ons contained in Art. 167, the Chief lviinister
undoubtedly performs a public duty of the nature as enjoined by clauses (a)
lo (c) of Art. 167. It is also clearly provided in the Constitution that the
Chief Minister or the Ministers are entitled to salaries or allowances obviously
in lieu of public duties that they perform. The salaries given to the
Chief
hfinister or the Ministers are given from the Government funds, and, therefore,
there will be no difficult}' in holding that the Ministers are in the pay of the
Government inasmuch as they receive their salaries, remunerations or wages
from the Government. [285 E-F]
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Once it is conceded that the Governor appoints the Chief Minister who is
paid a salary according to a statute made- by the legislature from the Govern~
ment funds, the Chief Minister becomes a person in the pay of the Government so as to fall squarely within cl. (12) of s. 21 of the Penal Code. [286 BJ
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M. KARUNANIDHI v; UNION
259
10. The use of the words 'other public servants' following a Minister of
the Union or of a State clearly show that a Minister would also be a public
servant as other public servants contemplated by s. 199(2) of the Code and
the Code being a statute complementary and allied to the Penal Code can be
looked into for the purpose of determining the real meaning and import of
the words 'public servant' as used in the aforesaid section [286 F]
Dattatraya Narayan Patil v. State of Maharashtra, [1975], Supp. SCR 145;
B
Emperor v. Sibnath Banerji & Ors., AIR 1945 PC 156; Rao
Shiv
Bakadur
Singh & Anr. v. The State of .TJ.indhya Pradesh, [1953] SCR 1188; referred
to.
_s- ~
--
S. Tara Singh v. Director Consolidation of Holdings, Punjab, Jullundur &
Ors. AIR 1958 Pub. 302, Bakshi Ghulam Mohd. v. G. M. Sadiq & Ors., AIR
1968 J & K 98; approved.
11. Three facts that have been proved beyond doubt :-
. (i) That a Minister is appointed or dismissed by the Governor and is,
therefore, subordinate to him whatever be the nature and status of his constitutional function.
(ii) That a Chief Minister or a Minister gets salary for the public work
done or the public duty performed by him.
(iii) That the said salary is paid to the Chief Minister or the Minister
from the Government funds.
[290A-B]
12. It is thus incontrovertible, that the holder of a public office such as the
Chief Minister is a public servant in respect of which the Constitution provides
that he will get his salary from the Government Treasury so long he holds
his office on account of the public service that he disch<irges. The tialary
given to the Chief Minister is coterminus with his office and is not paid like
other constitutional functionaries such as the President and
the
Speaker.
These facts, therefore, point to one and only one. conclusion and that is that
the Chief 1finister is in the pay of the Government ood is, therefore, a public
-iiervant within the meaning of s. 21(12) of the Penal Code. [290 C-D]
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 270271 of 1977.
From the Judgment and Order dated 10-5-1977 of the Madras
High Court in W.P. No. 429 and Cr!. R.P. No. 50/77.
G
K. K. Venugopal, N. A. Subramaniam, C. S. Vaidyanathan, Mrs.
Shanta Venugopal, K. R. Chowdhary and Mrs. Veena Devi Khanna for
the Appellant.
S. N. Kackar, Sol. Genl. (In Cr!. A. No. 270) R. B. Datar and
R. N. Sachthey, for the Respondent.
V. P. Raman, Adv. Genl and A. V. Rangam for the State of Tamil
Nadu.
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SUPREME COURT REPORTS
[1979] 3 s.c.s.
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The Judgment of the Court was delivered by
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FAZAL Au, J. These two appeals by
certificate
are directed
against a common order of the Madras High Court dated 10th May,
1977 dismissiug the applications filed before the High Court by the
appellant for quashmg the order of the Special Judge, Madras dated
4th January, 1977 refusing to discharge the appellant under section
239 of the Code of Criminal Procedure (hereinafter referred to as the
Code).
The facts of the case have been detailed in the judgment of the ~
. ._
High Court aad it is not necessary for us to repeat the same all over
->
again. However, in order to understand the points in issue, it may be
necessary to give a resume of the important stages through which the
case has passed and the constitutional points argued before us.
The appellant, M. Karunanidhi, was a former Chief Minister of
Tamil Nadu and was the petitioner before the High Court in the applications filed by him before the High Court. On 15-6-1976 a D.O. letter
was written by t11e Chief Secretary to the Government of Tamil Nadu
to the Deputy Inspector General of Police, CBI requesting him lo
make a detailed investigation into certain allegations against the appellant and others who were alleged to have abused their official position
in the matter of purchase of wheat from Punjab. A first information
report was accordingly recorded on 16-6-1976 and four months later
sanction under section. 197 of the Code was granted by the Governor
of Tamil Nadu for the prosecution of the appellant under sections 161,
468 and 471 of the Indian Penal Code and section 5(2) read with section 5 (1) (d) cf the Prevention of Corruption Act (hereinafter referred_ J,__
to as the Corruption Act) . Thereafter, the police submitted a charge-
••
sheet against the appellant for the offences mentioned above and alleged
that the appellant had derived for himself pecuniary advantage to the
extent of Rs. 4 to Rs. 5 Iakhs from Madenlal Gupta for passing favourable orders in respect of some firms. The case was registered before the
Special Judge and the uecessary copies of the records were furnished
to the appellant. The appellant on appearing before the Special Judge
filed an application for discharging him nnder section 239 of the Code
on the grour.d that the prosecution against him suffered from various
legal and conslilutional infirmities. The Special Judge, however, after
hearing counsel for the parties rejected the application of the appellant
as a result of \\hich the appellant filed two applications in the High
Court for quashing the proceedings and for setting aside the order of
the Special Judge refusing to discharge the appellant. As indicated
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M. KARUNANIDHI v. UNION (Fazal Ali, J.)
261
above, the High Court rejected the applications of the appellant but
A
granted a certificate for leave to appeal to this Court and hence these
appeals before us.
•
As far bacii. as 30th December, 1973 the Madras Legislature had
passed an Act known as The Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 hereinafter referred to as the State Act. The
'
State Act was pas~ed after obtaining the assent of the President of India.
This State Act was, however, amended by Act 16 of 197 4 and the
President's assent was received on 10th April, 1974. According to the
provisions of the State Act the statute was brought into force by virtue
,_.,J. oj a notification with effect from 8-5-1974. According to the allegations
"\
made against the appellant, the acts said to have been committed by
him fell within the period November 197 4 to March, 197 5.
On
31-1-1976 by virtue of the provisions of Article 356 President's rule
was imposed in the State of Tamil Nadu and the Ministry headed by
the appellant was dismissed and a Proclamation to his effect was issued
on the same date.
The High Court decided the petitions of the appellgnt on 10-5-1977 and granted a certificate for leave to appeal to this
Court on 27-7"1977.
Subsequently, however, the State Act was repealed and the President's assent to the repealing of the State Act was
given on 6-9-1977.
Thus, it is manifest that by the time the appeal
bas reached this Court and was taken up for hearing the State Act no
longer exists.
Consequently, some of the constitutional points raised
by the learned counsel for the appellant before the Court do not survive for consideration before us.
Faced with this situation, Mr. Venn Gopal, learned counsel for the
appellant has raised only two points before us. In the first place, be
submitted that even though the State Act was repealed on 6-9-1977
>, .. ,during the time that it was in force, it was wholly repugnant to the
•/
provisions of the Code, the Corruption Act and the Criminal Law
Amendment Act and by virtue of Article 254(2) of the Constitution
of India the provisions of the aforesaid Central Acts stood repealed
and could not revive after the State Act was repealed. The constitutional position, it is submitted, was that even though the State Act was
repealed the provisions of the Central Acts having themselves been
protanto repealed by the State Act when it was passed could not be
pressed into service for the purpose of prosecuting the appellant unless
those provisions were re-enacted by the appropriate legislature.
A
number of grounds were raised by counsel for the appellant in support
of the first plank of his argument that the State Act was repugnant to
the provisions of the Central Acts as a result of which the former was
rendered void.
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SUPREME COURT REPORTS
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Secondly, it was ar!'jlled that even assuming that the State Act has
ceased to exist and the Central Acts apply to the facts of the present
case, the appellant cannot be prosecuted under any of the sections of
the Penal Code or the Corruption Act, because being the Chief Minister of the State at the relevant time he was not a public servant as
defined in section 21 clause (12) of the Indian Penal Code.
The
argument was that by virtue of the position that the appellant enjoyed
as Chief Minis~r there was no relationship of master and servant
between him and the Government and he was acting as a constitutional
functionary and, therefore, could not be described as a public servant
as contemplated by section 21 (12) of the Penal Code.
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We propose to deal with the two arguments separately. We would
".
first deal with the question of repugnancy as raised by learned counsel
?
for the appellant. It is true that the State Act was passed by the
Legislature of Tamil Nadu and the assent of the President was obtained
on 30th December, 1973. By virtue of the provisions of Article 254
(2) of the Constitution since the assent of the President had
been
given the State Act was to prevail over the Central Acts so far as the
State of Tamil Nadu was concerned, but the serious question to be
considered is as to whether or not there was a real repugnancy result;
ing from an irreconcilable inconsistency between the State Act and the
Central Acts. Article 254 of the Constitution runs thus :~
"254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States : ( 1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which
Parliament is competent to enact, or to any provision of an
existing law with respect to one of the matters enumerated
in the Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether passed
before or after the law made by the Legislature of such State,
or, as the case may be, the existing law, shall prevail and the
law made by the Legislature of the State shall, to the extent
of the repugnancy, be void.
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(2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of
an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
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M. KARUNANIDHI v. UNION (Fazal Ali, J.)
263"
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying
or repealing the law so made by the Legislature of State" .
It would be seen that so far as clanse (l) of Article 254 is concerned it clearly lays down that where there is a direct collision bet-
~ ween a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated iu the Concurrent
List, then, subject to the provisions of clause (2), the State law would
be void to the extent of the repugnancy.
This naturally means that
~where both the State and Parliament occupy the field contemplated by
. '
the Concurrent List then the Act passed by Parliament being prior
'>
in point of time will prevail and consequently the State Act will have
to yield to the Central Act. In fact, the scheme of the Constitution
is a scientific and equitable distribution of legislative powers between
Parliament and the State Legislautres. First, regarding the matters
contained in List l, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have
no authority to make any law in respect of the Entries contained in
List I. Secondly, so far as the Concurrent List is concerned, both
Parliament and the State Legislatures are entitled to legislate in regard
to any of the Entries appearing' therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far
as the matters in List II, i.e., the State List are concerned, the State
Legislatures alone are competent to legislate on them and only under
certain conditions Parliament can do so. It is, therefore, obvious that
in such matters repugnancy may result from the following
circum·.
stances :- ·
l. Where the provisions of a Central Act'· and a State
Act in the Concurrent List are fully inconsistent and are
absolutely irreconcilable, the Central Act will prevail and the
State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into
collision with a law passed by Parliament on an Entry in the
Concurrent List, the State Act shall prevail to the extent of
the repugnancy and the provisions of the Central Act would
become void provided the State Act has been
passed
in
accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while
being substantially within the scope of the entries in the State
List entrenches upon any of the Entries in the Central List
A.
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
the constitutionality of the law may be upheld by invoking
the doctrine of pith and substance if on an analysis of the
provisions of the Act it appears that by and large the law
\
falls within the four corners of the State List an entrenchment, if any, is purely incidental or inconsequential.
'
4. Where, however, a law made by the State Legislature
on a subject covered by the Concurrent List is inconsistent
with and repugnant to a previous law made by Parliament,
then such a law can be protected by obtaining the assent of
the President under Article 254(2) of the Constitution. The
result of obtaining the assent of the President would be that
so far as the State Act is concerned, it will prevail in the
State and overrule the provisions of the Central Act in their
applicability to the State only. Such a state of affairs will
exist only until Parliament may at any time make a law
adding to, or amending, varying or repealing the law made
by the State Legislature under the proviso to Article 254.
So far as the present State Act is concerned we are called upon to
consider the various shades of the constitutional validity of the same
under Article 254(2) of the Constitution.
It is neither alleged or argued that l'arliament has at any time after
the State Act was passed proceeded to pass any law as contemplated
by the Proviso to Article 254. As, however, the State law has already
been repealed and the President's assent to the said repeal has been
received as far back as 6-9-1977 we are concerned only with the limited
qtrestion as to whether if the State law had repealed or overruled the
provisions of the Central law what will be the position after the State
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law itself ceases to exist. It is true that the doctrine of eclipse would
~ot apply to the constit~tio~ality of the Central law and t~e only ~~s~ ~
hon we have to determme 1s whether there was such an meconcilabfe -....,.
G
H
inconsistency between the State Act and the Central Acts that the
-
provisions of the Central Act stood repealed abd unless re-enacted the
~-
said provisions cannot be invoked even after the State Act was itself
repealed. In order, however, to enter into the domain of repugnancy
of the two Acts we have to consider the relevant provisions of the
Central Acts and of the State Act.
The High Court has on a very
•
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careful abd cautious analysis of the various provisions of the two Acts
-' •
come to a clear finding that there is no repugnancy between the State
Act and the Central Acts, but the State Act merely creates a new and
distinct offence which in its nature and purport is ~sentially different
from the offences contemplated by the Ibdian Penal Code and the
Corruption Act. It has been pointed out by the High Court as also
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M. KARUNANIDHI v. UNION (Fazal Ali, J.)
2 6 5
by the Solicitor General that not only the ingredients of the offences
created by the State Act are different from those of the Central Act,
but even the procedure is different. It was further argued by the Solicitor General that there is absolutely no repuguancy between the two
Acts and both can operate in their respective fields.
A
Iu order to appreciate this question, we would briefly refer to the
B
scheme of the State Act.
Section 2 defines o~rtain dignitaries like
Commissioner, Additional Commissioner, Government, Public man,
public servant.
Clause (a) of section 2 defines 'Commissioner' thus:
" 'Commissioner' or "Additional Commissioner''
m·~ans
the Commissioner of Inquiries or an Additional Commissioner
of Inquiries, as the case may be, appointed under section
4"
Clause ( c) of section 2 defines 'public man' thus :
"Public man" means
(i) any person who is or has been the Chief Minister or
any other Minister of the State;
(ii) a person who is or has been a Member of the Legislative Assembly or of the Legislative Council of the
State; or
(iii) a person who is or has been a Mayor or Deputy
Mayor of the Municipal Corporation of Madras or of
Madurai or Chairman of any Standing or Subject or
other Committee constituted or deemed to be constituted under the Madras City Municipal Corporation
Act, 1919 (Tamil Nadu Act IV of 1919) or the
Madurai City Municipal
Corporation
Act,
1971
(Tamil Nadu Act 15 of 1971) as the case may be;
(iv) a person who is or has been the Chairman or ViceChairman of a Municipal Council or Chairman of any
Standing or Subject or other Committee constituted
or deemed to be constituted under the Tamil Nadu
Disirict Municipalities Act, 1920 (Tamil Nadu Act
V of 1920) or any other law for the time in force;
( v) a p~rson who is or has been the Chairman or Vicec
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Chairman of a Panchayat Union Council or Chairman
H
or President of any Standing or Subject or other Com·
mittee of such council constituted or deemed to be
18-196 SC!/79
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c
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F
G
266
SUPREME COURT REPORTS
[1979] 3 s.c.R.
constituted under the Tamil Nadu Panchayats Act,
1958 (Tamil Nadu Act XXXV of 1958), or any
other law for the time being in force;
(vi) a person other than a Government servant who is or
has been the Chairman of-
( a) any corporation (not being a local authority)
established by or under a State or Provincial Act
and owned or controlled by the State Government;
(b) any Government company within the meaning of
section 617 of the Companies Act, 1956 (Central Act 1 of 1956), in which not less than fiftyone per cent of the paid-up share capital is held
by the State Government, or any company which
is a subsidiary of a company in which not less
than fiftyone per cent of the paid-up share capital
is held by the State Government".
It may be noticed here that the concept of public-man as contemplated
by the State Act differs in certain respects from that of a public servant
as contemplated by section 21 (12) of the Penal Code.
To begin with, unde.r the State Act a public-man clearly includes
the Chief Minister or any other Minister of the State as also a member
of the State Legislative Assembly or Legislative Council. Secondly, the
word 'public man' appearing in Section 2(c) clearly excludes a
Government servant, unless he falls within the categories of (a), (b)
and (c) of clause (vi) of section 2 of the State Act. This is a basic
departure from the provisions of the Penal Code where the word
'public servant' has been used in the widest possible sense so as to
include not only Government servants who are receiving salary from
the Government, but also other dignitaries who are in the pay of the
Government.
Section 3 clauses (1), (2) and (3) define criminal misconduct
which is almost the same as defined by the provisions of the Corruption
Act and the Penal Code (sections 5(2) and 5(1) (d) of the Corruption
Act and section 161 of the Indian Penal Code).
H
It may, however, be noted here that the State Act does not make
ioections 468 and 4 71 of the Indian Penal Code any offence under this
Act.
Section 4 prescribes the procedure for appointment of a high
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M. KARUNANIDHI v. UNION (Fazal Ali, !.)
267
powered tribunal for the purpose of holding investigation into the allegaA
tions made against any public man. Sections 4 a'nd 5 run thus :-
"4. Appointment of Commissioner of Inquiries and Additional Commissioner of Inquiries: (1) For the purpose of
conducting investigation in accordance with the provisions of
this Act, the Government shall, on the recommendation of the
Chief Justice of the High Court appoint, by notification, a
person to be known as Commissioner of Inquiries and one or
more persons to be known as Additional Commissioner of
Inquiries.
(2) The Commissioner shall be a person who is, or who
is qualified for appointment as, or who has been, a Judge of
a High Court and an Additional Commissioner shall be a
person who is, or who is qualified for appointment as, or who
has been, a District Judge.
(3) Every person appointed as the Commissioner or
Additional Commissioner shall, before entering upon his office,
make and subscribe before the Chief Justice of the High Court
or some person appointed in that behalf by him a'n oath for
affirmation in the form set out for the purpose in the First
Schedule .
( 4) The Additional Commissioner shall be subject to the
administrative control of the Commissioner, and in particular,
for the purpose of convenient disposal of investigations under
this Act, the Commissioner may issue such general or special
directions as he may consider necessary to the Additional
Commissioner;
Provided that nothing in this sub-section! shall be construed to authorise the Commissioner to question any finding
conclusion or recommendation of an Additional Commissioner.
x
x
x
x
x
5. Term of office and other conditions of ,!ervice of Com-
~
missioner and Additional Commissioner :
x
x
x
x
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B
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(4) There shall be paid to the
Commissioner and the
H
Additional Commissioner such salaries as are specified in the
Second Schedule.
T)
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
(5) The allowances and pension payable to, and other
conditions of service of, the Commissioner or Additional
Commissioner shall be the same as admissible -
(a) to a Judge of a High Court in the case o! the Commissioner,
(b) to a District Judge in the case of an Additional
Commissioner :
Provided that the allowance" and pension payable to, and
other conditions o! service of, the Commissioner or an Additional Commissioner shall not be varied to hii cliiadvantage
after his appointment".
Another impcrtant provision which is contained in the State Act
but not in the Central Acts is a provision regarding limitation. Under
section 8 which was introduced by section 2 of the Tamil Nadu Amending Act 16 of 1974 it is provided that the Commissioner or the Additional Commissioner shall not investigate any complaint invohing
criminal misconduct which is made after the expiry of 5 years from
the date on which the criminal misconduct complained against was
alleged to have been committed or after the expiry o! one year from
the date on which the public man ceased to be such public man. The
provisions of section 8 may be extracted thns :-
"6.