# PARKASH SINGH BADAL AND ANR v. ST A TE OF PUNJAB AND ORS

- **Citation:** [2006] Supp. 10 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 2006-12-06
- **Case number:** Civil Appeal No. 5636 of2006
- **Bench:** Dr. Arijit Pasaya T, S.H. Kapadia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/parkash-singh-badal-and-anr-v-st-a-te-of-punjab-and-ors-21107
- **Pages:** 54

## Headnote

Prevention of Corruption Act, 1947; s. 6(2)/Prevention of Corruption
Act, 1988; ss. 7, 8, 9, 10, 11, 13, 15 and 19/Code of Criminal Procedure,
1973; ss. 2, 41, 154, 173 and 197:
Prosecution of public servant-Protection from-Sanction before
prosecution-Necessities of-Held: Principle of immunity protects only those
acts of a public servant performed in exercise of function of the GovernmentA
B
c
But it does not protect criminal acts of a public servant though performed
under the colour of authority but in reality performed for its own pleasure/ D
benefit-Proiection so given is to protect a responsible public servant against
institution of vexatious criminal proceedings for offences allegedly committed
by him ·while acting/purporting discharge of official duties-Sanction to
prosecute, if granted, confers on Government complete control of prosecutionIn terms of Section 197 Cr.P.C., bar on exercise of power by Court to take E
cognizance of any offence against public servant is absolute and completeProtection afforded to public servant available subject to fulfilment of certain
conditions-Conditions specified under the provisions are mandatory in
nature-Protection available only to those acts/omission purportedly done
in exercise of official duties-If act done in course of service but not in
discharge of official duties bar to prosecute without sanction from competent F
authority not available to public servant-Sanction need not be obtained
at the time of lodging of complaint but at any stage of proceedings .
Public Servant-Prosecution-Information to Magistrate-Framing of
charges-Requirements of-Held: Information/Report to Magistrate sufficient G
elaborate details not necessary-At the stage of framing of charges, material
available on record need not be analysed minutely-Sanctioning authority
need not separately specifY each of offences against accused public servant.
Complaint-Misuse of office by public servant-Plea of malafidesHeld: Plea ofmalafides not only required to be clearly pleaded but specifically H
197
198
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A proved-Merely because the political opponent was the complainant that
does not per se lead to such an inference to dismiss the complaint/no notice
should be taken thereof-Hence the plea of malafides as raised cannot be
maintained in the facts and circumstances of the case.
B
Constitution of India, 1950; Articles 233 and 234:
Appointment of special Judge to a Special Court-High CourtJurisdiction and power of-Held: In the facts and circumstances of the case,
Articles 233 and 234 not attracted
C
Section I 54 Cr.P.C.-FIR-Legal principles governing registration of
a cognizable offence-Discussed
Words and Phrases:
"Absence of sanction' and 'Invalidity on account of non-application of
D mind'-Distinction between-Discussed
E
Abuse of Office-Test-Requirement of-Discussed.
Criminal Misconduct-Requirements of-Discussed in the context of s.
13 of the Prevention of Corruption Act, 1988.
'Failure of justice', 'in the opinion of-Meaning of in the context of subsection (3) and (4) of s.19 of Prevention of Corruption Act, 1988.
'lncuria'-Meaning of
F
Public Functionary-Public servant-Abuse of office-Mischief RuleInvoking of
Questions which arose for determination in these appeals were about
validity of proceedings initiated against appellant, the then Chief Minister of
Punjab and Ors, under the Prevention of Corruption Act, 1988 and/or the
G Indian Penal Code, 1860; and also as to the necessities of sanction before
prosecuting them in terms of s. 197 Cr.P.C. and the legality thereof.
! TJ.
Appellants contended that the proceedings were initiated against them
on the basis of complaints which were lodged malajide and as an act of political
vendetta; that allegations are vague, lack in details and even if accepted at the
face value, did not show the commission of any offence; that though the High
Court primarily relied on a Constitution Bench decision of this Court in R.S.
.....
PARKASH SINGH

## Text

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-
PARKASH SINGH BADAL AND ANR.
v.
ST A TE OF PUNJAB AND ORS.
DECEMBER 6, 2006
[DR. ARIJIT PASAYA T AND S.H. KAPADIA, JJ.]
Prevention of Corruption Act, 1947; s. 6(2)/Prevention of Corruption
Act, 1988; ss. 7, 8, 9, 10, 11, 13, 15 and 19/Code of Criminal Procedure,
1973; ss. 2, 41, 154, 173 and 197:
Prosecution of public servant-Protection from-Sanction before
prosecution-Necessities of-Held: Principle of immunity protects only those
acts of a public servant performed in exercise of function of the GovernmentA
B
c
But it does not protect criminal acts of a public servant though performed
under the colour of authority but in reality performed for its own pleasure/ D
benefit-Proiection so given is to protect a responsible public servant against
institution of vexatious criminal proceedings for offences allegedly committed
by him ·while acting/purporting discharge of official duties-Sanction to
prosecute, if granted, confers on Government complete control of prosecutionIn terms of Section 197 Cr.P.C., bar on exercise of power by Court to take E
cognizance of any offence against public servant is absolute and completeProtection afforded to public servant available subject to fulfilment of certain
conditions-Conditions specified under the provisions are mandatory in
nature-Protection available only to those acts/omission purportedly done
in exercise of official duties-If act done in course of service but not in
discharge of official duties bar to prosecute without sanction from competent F
authority not available to public servant-Sanction need not be obtained
at the time of lodging of complaint but at any stage of proceedings .
Public Servant-Prosecution-Information to Magistrate-Framing of
charges-Requirements of-Held: Information/Report to Magistrate sufficient G
elaborate details not necessary-At the stage of framing of charges, material
available on record need not be analysed minutely-Sanctioning authority
need not separately specifY each of offences against accused public servant.
Complaint-Misuse of office by public servant-Plea of malafidesHeld: Plea ofmalafides not only required to be clearly pleaded but specifically H
197
198
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A proved-Merely because the political opponent was the complainant that
does not per se lead to such an inference to dismiss the complaint/no notice
should be taken thereof-Hence the plea of malafides as raised cannot be
maintained in the facts and circumstances of the case.
B
Constitution of India, 1950; Articles 233 and 234:
Appointment of special Judge to a Special Court-High CourtJurisdiction and power of-Held: In the facts and circumstances of the case,
Articles 233 and 234 not attracted
C
Section I 54 Cr.P.C.-FIR-Legal principles governing registration of
a cognizable offence-Discussed
Words and Phrases:
"Absence of sanction' and 'Invalidity on account of non-application of
D mind'-Distinction between-Discussed
E
Abuse of Office-Test-Requirement of-Discussed.
Criminal Misconduct-Requirements of-Discussed in the context of s.
13 of the Prevention of Corruption Act, 1988.
'Failure of justice', 'in the opinion of-Meaning of in the context of subsection (3) and (4) of s.19 of Prevention of Corruption Act, 1988.
'lncuria'-Meaning of
F
Public Functionary-Public servant-Abuse of office-Mischief RuleInvoking of
Questions which arose for determination in these appeals were about
validity of proceedings initiated against appellant, the then Chief Minister of
Punjab and Ors, under the Prevention of Corruption Act, 1988 and/or the
G Indian Penal Code, 1860; and also as to the necessities of sanction before
prosecuting them in terms of s. 197 Cr.P.C. and the legality thereof.
! TJ.
Appellants contended that the proceedings were initiated against them
on the basis of complaints which were lodged malajide and as an act of political
vendetta; that allegations are vague, lack in details and even if accepted at the
face value, did not show the commission of any offence; that though the High
Court primarily relied on a Constitution Bench decision of this Court in R.S.
.....
PARKASH SINGHBADALv. STATE OF PUNJAB
199
. Nayak v. A.R. Antulay, [1984) 2 SCC 183, the said decision was rendered in A
the context of the Prevention of Corruption Act, 1947 (Old Act); that the
provisions contained in Section 6 thereof are in pari materia to Section 19 of
the 1988 Act; the effect of Section 6(2) of the Old Act corresponding to Section
19(2) of the Act was lost sight of; that the voluminous charge sheets filed are
extremely vague and do not indicate commission of any definite offence; that B
the offences alleged to have been committed under IPC had close nexus with
the workmen who are on official duty and therefore sanction under Section
197 Cr.P.C. is mandatory; that even offences punishable under Sections 468,
471 and 1208 have been in certain cases held to be relatable to the official
duty thereby mandating sanction in terms of Section 197 of the Code; that
the malafuie intention is clear as all these cases were registered at Mohali C
Police Station which was declared to be the police station for the purpose of
investigation of the concerned cases and new Court was established for the
trial of the concerned cases and jurisdiction was conferred on one officer
without following the due process of consultation with the High Court. These
are indicative of the fact that action was taken with ma/a fide intention only
to harass them; that this was a case of casus omissus; that a public servant
who continues to remain so (on transfer) has got to be protected as long as he
continues to hold his office; that even ifthe offending act is committed by a
public servant in his former capacity and even if such a public servant has
not abused his subsequent office still such a public servant needs protection
D
of Section 19(1) of the Act; that charge sheet is a bundle of confusions and E
no definite material is placed on record to substantiate the allegation of
commission of any offence; and that in the documents filed only Section 13(1)
of the Act has been only mentioned and not the exact alleged infraction.
Respondent-State and others submitted that the decision in R.S. Nayak's
case correctly lays down the position; that the allegations of mala fide are F
clearly unfounded; that no new court was established and in fact Special Judge
of Special Court who was appointed only after consultation with the High
Court, he was only designated to hear the cases; that the decision in R.S.
Nayak's case is not per incuriam as contended. Under Section 19(1) of the
Act previous sanction is prescribed for a public servant if (a) he is a public G
servant at the time of taking cognizance of the offence and (b) the accused
continues to hold office alleged to have been mis-used at the time of taking
cognizance of the offence by the Court; and that where the public servant has
ceased to be a public servant in one capacity by ceasing to hold office which
is alleged to have been misused, the fortuitous circumstance of the accused
being in another capacity holding an entirely different public office is H
•
200
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A irrelevant.
Dismissing the appeals, the Court
HELD: 1.1. This Court in the decided case of R.S. Nayak v. A. R. Antu/ay
adopted a construction which is based on the avoidance of mischief rule. That
B being so, the plea that the effect of Section 6(2) of the Old Act (Prevention of
Corruption Act, 1947) was not kept in view does not merit acceptance. Though
a mere reference to a provision in all cases may not in all cases .imply
consciousness as to the effect of that provision the case at hand.does notfall
to that category. In this case not only was there reference to that provision,
C but also this Court adopted a construction which kept in view the object of the
statute and the need for interpretation in.a particular way. (222-A-B-C)
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, referred to.
(1977) Imperial Court Report (662), referred to.
D
1.2. The principle of immunity protects all acts which the public servant
has to perform in the exercise of the functions of the Government The purpose
for which they are performed protects these acts from criminal prosecution.
However, there is an exception. Where a criminal act is performed under the
colour of authority but which in reality is for the public servant's own
E pleasure or benefit then such acts shall not be protected under the doctrine
of State immunity. Where the act performed under the colour of office is for
the benefit of the officer or for his own·pleasure Section 19(1) will come in.
Therefore, Section 19(1) is time and offence related. (223-C-D-E)
Habibulla Khan v. State of Orissa and Anr., (1995) 2 SCC.437· and
F Shreekantiah Ramayya Munipalli v. The State of Bombay, (1955) l SCR 1177,
referred to.
1.3. If a public servant in his subsequent position is not accused of any
criminal acts then there is no question of invoking the mischief rule. Protection
to public servants under Section 19(1)(a) of the Prevention of Corruption Act,
G 1988 has to be confined to the time related criminal acts performed under
the colour or authority for public servant's own pleasure or benefit as
categorized under Sections 7, 10, 11, 13 and 15 of the Act This is the principle
behind the test propounded by this court, namely,.the test of abuse of office.
(225-B-C)
H
Balakrishnan Ravi Menon v. Union of India, (2007] 1 SCC 45, referred
-
J;-
PARKASH SINGH BADAL v. STA TE OF PUNJAB
201
to.
A
1.4. Effect of sub-sections (3) and (4) of Section 19 of the Act are of
considerable significance. In Sub-Section (3) the stress is on "failure of
justice" and that too "in the opinion of the Court". In sub-section (4), the
stress is on raising the plea at the appropriate time. Significantly, the "failure
of justice" is relatable to error, omission or irregularity in the sanction. B
Therefore, mere error, omission or irregularity in sanction is considered
fatal unless it has resulted in failure of justice or has been occasioned thereby.
Section 19(1) is a matter of procedure and does not go to root of jurisdiction
as observed by this Court in the Narasimha Rao 's case. Sub-section (3)(c) of
Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act/ C
Section 19(2) of the Act question relates to doubt about authority to grant
sanction and not whether sanction is necessary. (226-C-D-E)
P. V. Narasimha Rao v. State, (1998) 4 SCC 626, referred to.
2.1. "lncuria" literally means "carelessness". In practice per incuriam D
is taken to mean per ignoratium. English courts have developed this principle
in relaxation of the rule of stare decisis. The "quotable in law" as held in
Young v. Bristol Aeroplane Co. Ltd. is avoided and ignored if it is rendered
"in ignoratium of a statute or other binding authority". Same has been
accepted, approved and adopted by this Court while interpreting Article 141
of the Constitution which embodies the doctrine of precedents as a matter of E
law. (227-A-B-CI
Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262; State of UP.
v. Synthetics and Chemicals Ltd., [1991) 4 SCC 139; Babu Parasu Kaikadi
(dead) by Lrs. v. Babu (dead) thr. Lrs., (2004) 1 SCC 681 and Sunita Devi v.
State of Bihar and Anr., (2005) 1 SCC 608, relied on.
F
Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, referred to.
Halsbury's Laws of England, 4th Edn., Vol. 26, referred to.
2.2. The question is not as to the nature of the offence such as whether G
the alleged offence contained an element necessarily dependent upon the
offender being a public servant, but whether it was committed by a public
servant acting or purporting to act as such in the discharge of his official
capacity. Before Section 197 Cr.P.C. can be invoked, it must be shown that
the official concerned was accused of an offence alleged to have been committed H
202
SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A by him while acting or purporting to act in the discharge of his official duties.
It is not the duty which requires examination so much as the act, because the
act can be performed both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and range of the official
duties of the public servant concerned. It is the quality of the act which is
B important and the protection of this section is available if the act falls within
the scope and range of his official duty. There cannot be any universal rule
to determine whether there is a reasonable connection between the act done
and the official duty, nor is it possible to lay down any such rule. This aspect
makes it clear that the concept of Section 197 Cr.P.C. does not immediately
get attracted on institution of the complaint case. (220-C-D-E-F)
c
Bakhshish Singh Brar v. S1!1t. Gurmej Kaur and Anr., AIR (1988) SC
257 and P. Arulswami v. State of Madras, AIR (1967) SC 776, relied on.
2.3. Section 197 Cr.P.C. not only specifies the persons to whom the
protection is afforded but it also specifies the conditions and circumstances
D in which it shall be available and the effect in law ifthe conditions are satisfied.
The mandatory character of the protection afforded to a public servant is
brought out by the expression, 'no court shall take cognizance of such offence
except with the previous sanction'. Use of the words, 'no' and 'shall' make it
abundantly clear that the bar on the exercise of power by the court to take
cognizance of any offence is absolute and complete. Very cognizance is barred.
E That is the complaint, cannot be taken notice of. (230-A-B-C)
Black's Law Dictionary, referred to.
2.4. Section 197 Cr.P.C. does not extend its protective cover to every
act or omission done by a public servant in service but restricts its scope of
F operation to only those acts or omissions which are done by a public servant
in discharge of official duty. It has been widened further by extending protection
to even those acts or omissions which are done in purported exercise of official
duty. That is under the colour of office. Official duty therefore implies that
the act or omission m_ust have been done by the public servant in course of
G his service and such act or omission must have been performed as part of
duty which further must have been official in nature. The Section has, thus,
to be construed strictly, while determining its applicability to any act or
omission in course of service. 1231-A-B-C)
B. Saha and Ors. v. MS. Kochar, 11979) 4 SCC 177 and Matajog Dobey
H v. H. C. Bhari, AIR (1956) SC 44, relied on.
PARKASH SINGH BADAL v. ST A TE OF PUNJAB
203
2.5. If on facts it is prima facie found that the act or omission for which A
the accused was charged had reasonable connection with discharge of his duty
then it must be held to be official to which applicability of Section 197 of the
Code cannot be disputed. 1232-A-B)
State of H.P. v. MP. Gupta, (2004) 2 SCC 349; State ofOrissa through
Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew, JT (2004) 4 SC B
52; Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath and Anr., JT (2004) 6
SC 323; K. Kalimuthu v. State by DSP, (2005) 4 SCC 512 and Rakesh Kumar
Mishra v. The State of Bihar and Anr., (2006) l SCC 557, relied on.
3.1. The question relating to the need of sanction under Section 197 of
the Code is not necessarily to be considered as soon as the complaint is lodged C
and on the allegations contained therein. This question may arise at any stage
of the proceeding. (234-G-H)
3.2. So far as the question about the non application of mind in the
sanction or absence of sanction is concerned, this has been answered in the D
first question i.e. where the public servant has ceased to be a public servant
since he has ceased to hold the office where the alleged offence is supposed
to have been taken place, the other questions really become academic.
1235-A-BI
3.3. The report in terms of Section 173 Cr.P.C. is in the nature of E
information to the Magistrate. Statutory requirement is complied with ifthe
requisite information is given. It purports to be an opinion and therefore
elaborate details are not necessary. 1239-B-C)
K. Veeraswamiv. Union of India and Ors., (1991) 3 SCC 655, relied on.
3.4. Mere non-description of the offences in detail is really not material.
At the stage of framing charge it can be urged that no offence is made out.
1240-B)
3.5. With reference to the absence of allegations under Sections 8 and
F
9 of the Act, it is submitted whether the charge sheet has reference to any G
particular material referred to in it and the relevance of it is to be considered
at the time when the charge is framed. It would not be desirable to analyse
minutely the materials as at that stage the Court is primarily concerned with
the question as to whether charge is to be framed in respect of any offence
and whether there prima facie appears existence of any material and not the H
204
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A sufficiency of the materials. Therefore, the appellants' stand that the charge
sheet does not refer to any particular material cannot be accepted, more
particularly, in view of the specific materials referred to by the respondentState. [240-B-C-DI
3.6. The offence of criminal mis-conduct is defined in Section 13. Five
B clauses contained in the said provision represent different types of infraction
under which the offence can be said to have been committed. If there is material
to show that the alleged offence falls in any of these categories, it is not
necessary at the stage of filing of the charge sheet to specify as to which
particular clause covers the alleged offence. It is the stand of the respondentC State that clauses (a), (b) (d) and (e) are all attracted and not clause (c).
Therefore, the sanctioning authority has rightly referred to Section 13(1)
and that does not make the sanction order vulnerable. [240-F-G]
3.7. Sanctioning authority is not required to separately specify each of
the offence against the accused public servant. This is required to be done at
D the stage of framing of charge. Law requires that before the sanctioning
authority materials must be placed so that the sanctioning authority can apply
his mind and take a decision. Whether there is an application of mind or not
would depend on the facts and circumstances of each case and there cannot
be any generalized guidelines in that regard. [240-G-H; 241-Al
E
3.8. The sanction in the instant case related to offences relatable to Act.
There is a distinction between the absence of sanction and the alleged invalidity
on account of non application of mind. The former question can be agitated at
the threshold but the latter is a question which has to be raised during trial.
[241-B)
F
4.1. The offence of cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and 1208 can by no stretch of
imagination by their very nature be regarded as having been committed by
any public servant while acting or purporting to act in discharge of official
duty. In such cases, official status only provides an opportunity for commission
G of the offence. [241-E)
Rakesh Kumar Mishra v. The State of Bihar and Anr., [2006) 1 SCC
557, distinguished.
Baijnath v. State of MP., [ 1966) SCR 210, referred to.
H
4.2. The opening word of Sections 8 and 9 of the Act is "whoever". The
PARKASH SINGH BADAL v. ST A TE OF PUNJAB
205
expression is very wide and would also cover public servants accepting A
gratification as a motive or reward for inducing any other public servant by
corrupt or illegal means. Restricting the operation of the expression by
curtailing the ambit of Sections 8 and 9 and confining to private persons
would not reflect the actual legislative intention. [241-H; 242-A)
Ram Krishan andAnr. v. State of Delhi, AIR (1956) SC 476, referred B
to.
4.3. Section 13(1 )( d) of the Act envisages obtaining of any valuable thing
or pecuniary advantage, on the other hand Sections 8 and 9 of the Act are
much wider arid envisage taking of "any gratification whatever". It would not C
be permissible to contend that a public servant would be covered by Section
13(1)(d) of the Act and therefore the public servant would not be covered by
Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the
offences under Sections 8 and 9 of Act are different and separate. [242-E-F)
4.4. If a public servant accepts gratification for inducing any public D
servant to do or to forbear to do any official act, etc. then he would fall in the
net of Sections 8 and 9. In Section 13(1)(d) it is not necessary to prove that
any valuable thing or pecuniary advantage has been obtained for inducing any
public servant. (242-G-H]
4.5. The word 'gratification' is not restricted to pecuniary gratifications E
or to gratifications estimable in money. Thus, Sections 8 and 9 are wider
than Section 13(1)(d) and clearly constitute different offences. (243-Bl
5.1. A plea of malafides has not only to be clearly pleaded but specifically
proved by adducing cogent evidence. Mere allegation and suspicions would
not be sufficient. The person against whom malafides conduct is attributed
is interestingly not a party in the proceedings. (243-E)
5.2. Merely because the political opponent was the complainant that does
not per se lead to an inference that the complaint has to be thrown out or that
no notice should be taken thereof. [243-F-G)
6.1. The legal mandate enshrined in Section 154 (1) Cr.P.C. is that every
information relating to the commission of a 'cognizable offence' (as defined
under section 2 (c) of the Code) if given orally (in which case it is to be reduced
into writing) or in writing to "an officer incharge of a police station" (within
F
G
the meaning of Section 2(o) of the Code) and signed by the informant should H
206
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
. A be entered in a book to be kept by such officer in such form as the State
Government may prescribe which form is commonly called as "First
Information Report" and which act of entering the information in the said
form is known as registration of a crime or a case. (244-E-Fl
6.2. At the stage of registration of a crime or a case on the basis of the
B information disclosing a cognizable offence in compliance with the mandate
of Section 154 (I) Cr.P.C., the concerned police officer cannot embark upon
c
an enquiry as to whether the information, laid by the informant is reliable
and genuine or otherwise and refuse to register a case on tht ground that
the information is not reliable or credible. 1244-F-Gj
6.3. Evidently, the non-qualification of the word "information" in Section
154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason
that the police officer should not refuse to record an information relating to
the commission of a cognizable offence and to register a case thereon on the
ground that he is.not satisfied with the reasonableness or credibility of the
D information. (245-D-El
6.4. An overall reading of the Codes of 1861, 1872, 1882 and 1898
makes it clear that the condition which is sine-qita-non for recording a First
Information Report is that there must be an information and that information
must disclose a cognizable offence. It is, therefore, manifestly clear that if
E any information disclosing a cognizable offence is laid before an officer
incharge of a police station satisfying the requirements of Section 154(1) of
the Code, the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register a case on
the basis of such info.rmation. Though a police officer cannot investigate a
F non-cognizable offence on his own as in the cas~ of cognizable offence, he
can investigate a non-cognizable offence under the order of a Magistrate
having power to try such non-cognizable case or commit the same for trial
within the terms under Section 155(2) of the Code but subject to Section 155(3)
of the Code. [245-G-H; 246-A-B-C)
G
State of Haryana and Ors. v. Bhajan Lal and Ors., 11992 I Supp I SCC
.335 and State of Punjab and Anr. v. Gurdial Singh and Ors., 11980) 2 SCC
471, referred to.
6.5. Obligation to register a case is not to be confused with the remedy
if same is not registered. The ultimate test therefore is whether the allegations
H have any substance. An investigation should not be shut out at the threshold
PARKASH SINGH BADAL v. STA TE OF PUNJAB
207
political opponent or a person with political difference raises an allegation of A
, commission of offence. Therefore, the plea of malafides as raised cannot be
maintained. (248-A-BJ
Gangadhar Janardan Mhatre v. State of Maharashtra and Ors., (20041
7 sec 768, relied on.
7.1. So far as conferment of jurisdiction with the police station over
B
the whole State is concerned, it appears that the same was created on
31.10.1994 by the then Government of Chandigarh and by order dated
20.4.1995 the office of Superintendent of Police, Vigilance Flying Squad-I/
Criminal Investigation Agency was shifted to Police Station, Mohali. This C
order continued to operate subsequently. As rightly contended by the
respondent-State that the fresh notification was issued creating some more
police stations qua other districts. It is pointed out that PS Mohali falls within
the Ropar district and within the area of Special Judge, Ropar as was
specified in consultation with the Punjab and Haryana High Court. The Special
Judges are transferred by the High Court and, therefore, the allegation of D
choosing any Special Judges with oblique motive is clearly without any
substance. )248-C-D-EJ
7.2. Notification regarding re-organization of the police station with
Police Station, Mohali having jurisdiction over the whole State of Punjab was
notified on 19.12.2002. At this juncture, it is relevant to note that allegations E
of impropriety were made because of the Notification dated 17.11.2003 relating
to jurisdiction of the Special Judge. The controversy revolves around the said
Notification regarding P.S., Mohali with Statewide jurisdiction. So far as the
Notification dated 17.11.2003 is concerned, the expression used is "appoint".
It was clarified that though the said expression has been used, it did not
actually mean appointment of a Sessions Judge and First Additional Sessions
Judge, Ropar as Special Judges. They were already appointed and designated
as stated in the Notification itself. What was intended is related to allocation
F
of cases registered at P.S., Mohali to the existing Courts of Special Judges,
Ropar. There is also no dispute that P.S., Mohali falls within the area of
district Ropar over which Special Judges, Ropar had jurisdiction as approved G
by the High Court (248-E-F-G; 249-A-B-C]
8.1. There is no doubt that the control of the High Court is
comprehensive, exclusive and effective and it is to subserve the basic feature
of Constitution. (249-EI
H
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SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A
High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and
Anr., f 1998) 3 SCC 72 and Registrar (Admn.), High Court ofOrissa,, Cuttack
v. Sisir Kanta Satapathy (dead) by Lrs. and Anr., (1999)·7 SCC 725, referred
to.
8.2. Articles 233 and 234 of the Constitution are not attracted because
B this is not a case where appointment of persons to be Special Judges or their
postings to a particular Special Court is involved. It is however factually
conceded that the expression "notwithstanding the jurisdiction of other Special
Judges in the State of Punjab" is not necessary. Once group of cases are
allocated to Special Court, consequentially other Special Courts cannot deal
C with them. (249-F-G]
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5636 of2006.
From the Judgment and final Order dated 2.9.2004 of the High Court of
Punjab and Haryana at Chandigarh in C.W.P. No. 9410/2004.
Gopal Subramanium, A.S.G., Mohan Parasaran, A.S.G. R.S. Checma,
A.A.G., Soli J. Sorabjee, K.K. Vengupoal, P.P. Rao, Arun Jaitley, L.N. Rao,
Trivedi, Mukul Rohtagi, H.S. Mattewal, Rakesh Dwivedi, Dr. A.M. Singhvi,
K.B. Sinha, Ashok H. Desai, Ranjit Kumar, K.R. Sasiprabhu, M.K. Sreegesh,
Hari Priya, Fazlim Anam, E.M.S. Anam, S. Janani, D. Mahesh Babu, Krishnan
E Venugopal, S. Udaya Kumar Sagar, Bina Madhavan, H.S. Sidhu, Shweta Garg,
Hari Kumar, G., Vinayagam, Vikram Choudh~ry, Dashmeeta Chadha (for Mis.
Lawyer's Knit & Co.). Jayshree Anand, Karunakar Mahalik, P.H. Parekh, E.R.
Kumar, Shakum Sha;rma, Abhishek Kumar, Ailshuman Ashok, Purushottam
Tripathi, K. Ramesh (for Mis. P.H. Parekh & Co.) Aparajita Singh, T. Mahipal,
Sudhir Wali~, Sanjay Hegde, Priank Adhyaru, Sanjay Jain, Mukesh Kumar,
F
Hinmat Singh Shergill, Arun K. Sinha, R. Satish, Pallav Shishodia, Gopal
f
Singh, Nishakant Pandey, Vimla Sinha, Chidananda D.L. K.K. Senthilvelan,
Gaurav Dhingra, P. Parmeswaran and Ajay Sharma for the appearing parties.
G
H
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. Leave granted.
In each of these appeals challenge is to the judgment of the Punjab and
Haryana High Court dismissing the petition filed by the appellant in each
case questioning the validity of proceedings initiated under the Prevention
of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code,
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.]
209
1860 (in short the 'IPC'). In the latter category of cases the question raised A
is either lack of sanction in terms of Section 197 of the Code of Criminal
Procedure, 1973 (in short the 'Code') or the legality thereof.
It is the stand of the appellant in each case that the proceedings were
initiated on the basis of complaints which were lodged ma/a fide and as an
act of political vendetta. It is stated that allegations are vague, lack in details B
and even if accepted at the face value, did not show the commission of any
offence. It is stated that though the
High Court primarily relied on a
Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay,
[1984} 2 SCC 183, the said decision was rendered in the context of the
Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted C
that the provisions contained in Section 6 thereof are in pari materia to
Section 19 of the Act so far as relevant for the purpose of this case; the effect
of Section 6(2) of the Old Act (corresponding to Section 19(2) of the Act) was
lost sight of. The decision in the said case was to the effect that if an accused
is a public servant who has ceased to be a public servant and/or is a public
servant of different category then no sanction in terms of Section 19( I) of the D
Act corresponding to Section 6(1) of the Old Act is necessary.
So far as the factual scenario of these cases is concerned appellant Sri
Parkash Singh Badal was at the relevant point of time the Chief Minister of
the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is
his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed E
offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri
Gurdev Singh B\ldal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan
were Ministers during the concerned period and were at the time of taking
cognizance members of Legislative Assembly. Shri Sukhbir -Singh Badal was
a member of the Parliament. As noted above, primary stand is that the effect F
of Section 6(2) of the Old Act corresponding to Section 19 (2) of the Act was
not considered and in that view of the matter the judgment in Antu lay 's case
(supra) is to be considered per incuriam. Additionally, it is submitted that the
voluminous charge sheets filed are extremely vague and do not indicate
commission of any definite offence. Some allegations of general nature have
been made. The decision in P. v. Narasimha Rao V. State, [1998] 4 sec 626, G
specifically dissented from the view regarding vertical hierarchy which appears
to be the foundation for the conclusion that the authority competent to
remove the accused from office alone could give sanction. It is submitted that
the offences alleged to have been committed under IPC had close nexus with
the workmen who are on official duty and therefore sanction under Section H
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A 197 of the Code is mandatory. With reference to several judgments of this
Court it is submitted that even offences punishable under Sections 468, 471
and l20B have been in certain cases held to be relatable to the official duty
thereby mandating sanction in terms of Section 197 of the Code.
It is pointed out that the ma/a fide intention is clear as· all these cases
B were registered at Mohali Police Station which was declared to be the police
station for the purpose of investigation of the concerned cases and new
Court was established for the trial of the concerned cases and jurisdiction was
conferred on one officer without following the process of consultation with
the High Court. These are indicative of the fact that action was taken with
C ma/a fide intention only to harass the accused persons as noted above.
Learned counsel for the respondents on the other hand submitted that
the decision in R.S. Nayak 's case (supra) correctly lays down the position.
Several attempts were made in the past to distinguish said case and to
propound that the said decision did not indicate the correct position in law.
D The allegations of ma/a fide are clearly unfounded. No new court was
established and in fact Special Judge of Special Court who was appointed to
have consultation with the High Court was only designated to hear the cases.
In fact for the sake of convenience these cases having link with each other
can be disposed of early if they are taken up together by one Court.
E
In essence, it is submitted that the decision in R.S. Nayak's case (supra)
is not per incuriam as contended. Under Section 19(1) of the Act previous
sanction is prescribed for a public servant if (a) he is a public servant at the
time of taking cognizance of the offence and (b) the accused continues to
hold office alleged to have been mis-used at the time of taking cognizance
F of the offence by the Court. This is the view expressed in R. S. Nayak 's case
(supra).
G
H
Section 6 of the Old Act and Section 19 of the Act read as follows:
"6. Power to try summarily.-{l) Where a special Judge tries any
offence specified in sub-section ( 1) of section 3, alleged to have been
committed by a public servant in relation to the contravention of any
special order referred to in sub-section ( 1) of section 12 A of the
Essential Commodities Act, 1955 ( 10 of 1955) or of an order referred
to in clause (a) of sub-section (2) of that section, then, notwithstanding
anything contained in sub-section (1) of section 5 of this Act or
section 260 of the Code of Criminal Procedure, 1973 (2of1974), the
1
PARKASHSINGHBADALv. STATEOFPUNJAB[PASAYAT,J.]
211
special Judge shall try the offence in a summary way, and the provisions A
of sections 262 to 265 (both inclusive) of the said Code shall, as far
as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under
this section, it shall be lawful for the special Judge to pass a sentence
of imprisonment for a term not exceeding one year:
· B
Provided further that wher. at the commencement of, or in the course
of, a summary trial under this section, it appears to the special Judge
that the nature of the case is such that a sentence of imprisonment
for a term exceeding one year may have to be passed or that it is, for
any other reason, undesirable to try the, cac;e summarily, the special C
Judge shall, after hearing the parties, record an order to that effect and
thereafter recall any witnesses who may have been examined and
proceed to hear or re-hear the ease in accordance with the procedure
prescribed by the said Code for the trial of warrant cases by Magistrates.
(2) Notwithstanding anything to the contrary contained in this Act or D
in the Code of Criminal Procedure, 1973 (2of1974), there shall he no
appeal by a convicted person in any case tried summarily under this
section in which the special Judge passes a sentence of imprisonment
not exceeding one month, and of fine not exceeding two thousand
rupees whether or not any order under section 452 of the said Code E
is made in addition to such sentence, but an appeal shall lie where any
sentence in excess of the aforesaid limits is passed by a special Judge.
19. Previous sanction necessary for prosecution.-{ I) 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 servant, except p
with the previous sanction,-
(a) in the case of a person who is employed in 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 connection with the G
affairs of a State and is not removable from his office save by or with
the sanction of the State Government, of that Government;
(c) in the case of Cijly other person, of the authority competent to
remove him from his office.
H
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B
c
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SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
(2) Where for any reason whatsoever any doubt arises as to whether
the previous sanction as required under sub-section (I) 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 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, 1973 (2of1974),
(a) no finding, sentence or order passed by a special Judge shall be
reversed or altered by a Court in appeal, confinnation or revision on
the ground of the absence of, or any error, omission or irregularity
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 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 any inquiry, trial, appeal or other
proceedings.
(4) In determining under sub-section (3) whether the absence of, or
any error, omi~sion 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.
IPC provided for offences by or relating to public servants under Chapter
PARKASHSINGHBADALv. STATE OF PUNJAB [PASAYAT,J.]
213
IX including Sections 161to165A. The Old Act was enacted on 12.3. 1947, A
with the object of making provisions for the prevention of bribery and
corruption more effective. In I 952 a Committee headed by Dr. Bakshi Tek
Chand was constituted. The said Committee examined the true intent and
purpose of Section 6 of the Old Act.