# R. S. NAYAK • v. A.R.ANTULAY February, 16, 1984 ·

- **Citation:** [1984] 2 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 1984
- **Bench:** 0. A. Desa!, R. S. Pathak, 0. Chjnnappa Reddy, A. P. Sen, V. Bala!<Rishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-s-nayak-v-a-r-antulay-february-16-1984-8558
- **Pages:** 63

## Headnote

8.
Preventfoi1 of Corruption ·Act, 1947-S . ... : 6-Jnterp'retatiOfl of Whether court
C
can tak~ .co_gnizance of o.(fences enu"1~rateu· iii _s. 6 agiiihst public S[YV'!_nf withouf
sanction 9/ co1npetent ·authority-Which is co1npetent authority to givk sanctio11What is r'e!evant date on which sanction be there_,:...For. ·attracting s.6 acCu.sed should·.
he a public serl'ant both on date oj o.lfenCe and on date when court, .takes cognizon~e
pf offe'nce. In cases Where accused holds several offices each One of. which makes him
publi.c· serVaiit-Whether sanction of corripeteizt -a~thorilies of all the. . offices necessary
or whether.· sanction o.f that cdmpetent authoritY alone under which public servant has
D ·
lnisus~d his offipe· is sufficient.
Indian Penal Code-s.21, clauses (3}, (7) and 02) (a)-Defenition 'of ~Public
•servant'-$cope oj....:....Whether Memf?er -of State Legisl~tive· Assembly .a 'public' Ser- ·
vant'. "Express qns 'Qr, 'pay', in the pay "of, and 'Government, nsed 1"n s. 21,eXp/afned.
+
.Construction~of Statutes-.Rule of:._Const1;11ct on n1ust advance
obj~ct Of ActCourt 1nust give' effect tO natural 1neaning of words-In case of atizhig_uity court must
.E
ascertain. intenatio~1 oflegisfature behind Act;_Cour{ can. take h~lp of external aids-·
"r· While.c,onst~ucting anc_ient. statute court can.look.at surrOunding circumstances when
statute was endcted. ·
Words and Phrases-Wordf 'or· and· 'pay,11iea1iing_of, Phrase 'in ihe flay of;- .
. ' .
.
Explained.
•
}-
The. appellant, R:S. Nayak, llled·a complaint against the reSpondent,· A.R.
Antulay, ·:i public servant -being the Chief Minister of MaharaShtra siate, under
ss: 161, 165 I.P.C. ands. 5·~f tl:ie Pi"evCntion·of Corruption Act, 1947 (1947 Act)
allegi·ng_abus~· of offi.Ce of Cliief Ministef. The complaint.was rejected on account.
of absence of nrcessary sanction of the Govern·Or of Maharashtra · State under s.6
F
•
of the 1947 Act t6 prOsecutc the i'espondcn,t. .Aftet the G~vemor issued neceSsary
sanction, the apJ:,ellaht" filed _a fresh complaint in the Court of .Special Jud~ aiainst
. the, respondenf on the same grounds. Hciwe"ver, . on the date of.. filing fresh corn- . G
plaint the_respi:>~derit had a'Iready resigned as Chief Minister. The respondent cOn-·
!.. . tended that the SpeCial Judge ha~ no jurisdiction to try him under. s. 7 of the Cdmi.
...
' . nal Law Amendment Act, 1952 and that no cognizance could be iake!l ~n~ private
complaint. The· Special Judge rejected both the contentions. Jn the· rneantinie the
State GoVernment issued ·a notification under s. 7(2) of tlie Crii:ninal Law. Amendment Act~ 1752 under whi.ch the· ·case was transfe~r¢ to another. S~ia.I JudgC'. In
~ crin1inal revisiorl. applic_atioO filed. by the repsondent aga.inst the· order of earlier
•
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496
SUPREME CQURT REPORTS
[1984] 2 s.c.R.
Special Judge, a Division Ben~h of th~ High Court held .that the Soecail Judge had·
·jurisdiction to try ihe reSpondent 3.nd that the private complaint ~vas maintainable.
'Wh.en the latter Sp~ial Judge-proceeded with the case th_e respondent fi!C:d an appli-
·cation for his discharge on the grounQs that the charge agai~st hin1 was baseless
""and· that he beiilg· a Me1nber of Legislative -Assenibly (M.L.A) requisite sanction.
under s .. 6. of tht 1947 Act waS necesSary. The Special Judge discharged the respon-
)... ;
dent holding that the -respondent being ML A \Vas a public servant within s. 2-1
(ll)(ri) of LP.C~ and in the absence Of the sanction of-the Legisl{ltivc- Assembly
'he "could not take ~ognizapce of 6ffeh~e: The sPecial Judge ai_so held that the 'inater.ia·l date fo1· deciding the ap'pliciLbility- of s .. 6 Of the 1947 ACt was the date on whicl)
th¢ Court waS askbd to take cognizance of the offence. The.appel!ani challenged
the order of the Sp~ial Judge in this Appeal.·
The questions which arose for consideratio11 were:-
(a) What is- the relevant date with 1eference to which a valid sanction is a
·a' pre~requisitc .for

## Text

_Characters 0–39,899 of 178,115. This is a partial read: ask again with offset=39899 for what follows._

I .
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·495
A
R. S. NAYAK
•
v.
A.R.ANTULAY
February, 16, 1984 ·
[0. A. DESA!, R. S. PATHAK', 0. CHJNNAPPA REDDY,
A. P. SEN AND V. BALA!<RISHNA ERADI, JJ.J
8.
Preventfoi1 of Corruption ·Act, 1947-S . ... : 6-Jnterp'retatiOfl of Whether court
C
can tak~ .co_gnizance of o.(fences enu"1~rateu· iii _s. 6 agiiihst public S[YV'!_nf withouf
sanction 9/ co1npetent ·authority-Which is co1npetent authority to givk sanctio11What is r'e!evant date on which sanction be there_,:...For. ·attracting s.6 acCu.sed should·.
he a public serl'ant both on date oj o.lfenCe and on date when court, .takes cognizon~e
pf offe'nce. In cases Where accused holds several offices each One of. which makes him
publi.c· serVaiit-Whether sanction of corripeteizt -a~thorilies of all the. . offices necessary
or whether.· sanction o.f that cdmpetent authoritY alone under which public servant has
D ·
lnisus~d his offipe· is sufficient.
Indian Penal Code-s.21, clauses (3}, (7) and 02) (a)-Defenition 'of ~Public
•servant'-$cope oj....:....Whether Memf?er -of State Legisl~tive· Assembly .a 'public' Ser- ·
vant'. "Express qns 'Qr, 'pay', in the pay "of, and 'Government, nsed 1"n s. 21,eXp/afned.
+
.Construction~of Statutes-.Rule of:._Const1;11ct on n1ust advance
obj~ct Of ActCourt 1nust give' effect tO natural 1neaning of words-In case of atizhig_uity court must
.E
ascertain. intenatio~1 oflegisfature behind Act;_Cour{ can. take h~lp of external aids-·
"r· While.c,onst~ucting anc_ient. statute court can.look.at surrOunding circumstances when
statute was endcted. ·
Words and Phrases-Wordf 'or· and· 'pay,11iea1iing_of, Phrase 'in ihe flay of;- .
. ' .
.
Explained.
•
}-
The. appellant, R:S. Nayak, llled·a complaint against the reSpondent,· A.R.
Antulay, ·:i public servant -being the Chief Minister of MaharaShtra siate, under
ss: 161, 165 I.P.C. ands. 5·~f tl:ie Pi"evCntion·of Corruption Act, 1947 (1947 Act)
allegi·ng_abus~· of offi.Ce of Cliief Ministef. The complaint.was rejected on account.
of absence of nrcessary sanction of the Govern·Or of Maharashtra · State under s.6
F
•
of the 1947 Act t6 prOsecutc the i'espondcn,t. .Aftet the G~vemor issued neceSsary
sanction, the apJ:,ellaht" filed _a fresh complaint in the Court of .Special Jud~ aiainst
. the, respondenf on the same grounds. Hciwe"ver, . on the date of.. filing fresh corn- . G
plaint the_respi:>~derit had a'Iready resigned as Chief Minister. The respondent cOn-·
!.. . tended that the SpeCial Judge ha~ no jurisdiction to try him under. s. 7 of the Cdmi.
...
' . nal Law Amendment Act, 1952 and that no cognizance could be iake!l ~n~ private
complaint. The· Special Judge rejected both the contentions. Jn the· rneantinie the
State GoVernment issued ·a notification under s. 7(2) of tlie Crii:ninal Law. Amendment Act~ 1752 under whi.ch the· ·case was transfe~r¢ to another. S~ia.I JudgC'. In
~ crin1inal revisiorl. applic_atioO filed. by the repsondent aga.inst the· order of earlier
•
H
A
c
·D
E
F
•
.G
• H
496
SUPREME CQURT REPORTS
[1984] 2 s.c.R.
Special Judge, a Division Ben~h of th~ High Court held .that the Soecail Judge had·
·jurisdiction to try ihe reSpondent 3.nd that the private complaint ~vas maintainable.
'Wh.en the latter Sp~ial Judge-proceeded with the case th_e respondent fi!C:d an appli-
·cation for his discharge on the grounQs that the charge agai~st hin1 was baseless
""and· that he beiilg· a Me1nber of Legislative -Assenibly (M.L.A) requisite sanction.
under s .. 6. of tht 1947 Act waS necesSary. The Special Judge discharged the respon-
)... ;
dent holding that the -respondent being ML A \Vas a public servant within s. 2-1
(ll)(ri) of LP.C~ and in the absence Of the sanction of-the Legisl{ltivc- Assembly
'he "could not take ~ognizapce of 6ffeh~e: The sPecial Judge ai_so held that the 'inater.ia·l date fo1· deciding the ap'pliciLbility- of s .. 6 Of the 1947 ACt was the date on whicl)
th¢ Court waS askbd to take cognizance of the offence. The.appel!ani challenged
the order of the Sp~ial Judge in this Appeal.·
The questions which arose for consideratio11 were:-
(a) What is- the relevant date with 1eference to which a valid sanction is a
·a' pre~requisitc .for the prosecutiOn of a public servant' for offences enumerated-ins. ·6 of the 1947 Act ?
..\.
(b) If the accused hcilds_ Several_ offices occupyi.ng
ea~h of w'hich n1akes _)-
hin1 a public-servant, ·is sanction or each one of the competent authori~
ties entitled to.remove hi1n.froin each one of the offices held b~' hin1 neces~
sary. and if anyone of the Competent authorities fai!S or declines ·to grant
sanction, i" the Court precluded or prohibited ·froni taking cognizance_'
of the offence with \vJ:tich the public servant is charged, or. is it implicit
in s. 6 of the 1947 Act that stinctiOn of that -competent authority ~lo*::
~
I ,_
~
~
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, is necessary wbich is entitled to· ren~ove the public servant from the office
··which· is alleged· to have been abLiSed, or' 1ni_sused for corrupt n1qtives ? -+ .
(C) ~Js M.L.A. a'public .servant within the !neaning of the expression in cl_auses
l2{a), 3 and 7 of s. 21 l.P.c;. ?
·
·
'.
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(d) Is sanction as contemplated by s. 6 pf the 1947 Act ncCe~sary for proseCution of M.L.A. and if so, 'which is the. sa1lctioning authority con1petent
tO reffiovc M.L.J\. fron1 the office oJ Meinber of the Legislative Asse1nbly ?
.
Allowing the- appeal.
. · · · ·
· ·
HELD; The provisons of ~he Act m~st rcc~ive s~ch construction at the hands a
of the Court as would advance the o.bject and purpose underlying the _Act and 'Ut
any rate not defeat it. If the \vords of the s"tatuTe arc clear and unan1biguous, it is
is the 'pliinest duty, of the court ~o givr effect tO the natural meaning.of the _words,,
··used in the provisions. Tn the event ·of an ambiguity of the plain n1ean'ing of the
.wor4s used in -the statute being sclf~d~feating, the court ~s entitleQ to sascertain the
intention of the legislature to remoye the ambiguity by c~nstruing the provisio!1 of
..
. the.statute as a Whole keeping in v.lew what was the mischief when the sta{ute was
Cnacted and to remove which the legislature
ena~ted the statute.· Wheneevei· a
question of construction arises upon an1biguity or where two vie'ws are poss-ible of}·
o'f a-provision, it would be the duty of the court to adopt that constrJJction which
would ·adva-~ce tlie object underlying the_ Act. ·[512 A-C]
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The basic purpo'se underlying all canons of"constraction is the ascertainment
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R. S. NAYAK V. A. R .. ANTULAY
4<).7
\Vith reasonable certainty of the "intention of Parliament in enacting the legislation..
A
F.or this purpose whY should the aids whiCh. Parliament availed of such as .report:of
a speCial committee precedin.e enactment, existing state of law, the envir~nrnent '
necessitating· enactment Of legislation, and
the object. sought to be achieved, be
denied tO cotlrt whose function is primarily to give. effect to the real- intetion of
the _Parliament in Cna~ting the legislation. Such deniai ·would deprive the court
of a· substantia) and illuminating aid to construction. Therefore,
departin~ from· the·
earlier English· decisions, the reports Or the committee which pre_ceded the enactment
B'
of a legislation, reports of Joint ·Parliamentary Committee, report"of a commission
·Set up for c_olleCting iriforma1ion l~ading to the.ena~tment are permissible external
aids to cOnstructi.?n. [527A.;D-,EJ
. In cofistruing <i statut.e more especially the ancient statute, the court may look
at th~ surrounding circumstances when the statute was e~acted. -The .construction
of ancient statutes may be e!udicatcd by.what in the language' of the courts is ca11ed
C
contettiporaf1ea expoSitio, that is, by seeing how they Were understood at the time
when they were passed. [528F-G]
Standard dictionaries as a rule give in respect of each word a:s many meanings
in which the word has either been used or it is likely to be used in different contexts
ana. connections~ While it may be
penn~ssible to refer to dictionaries to find -
out the meaning in :which a W.ord is capable of being used or understood in·common
parlance, the_ well-known cannon ·of construction should not even for a minUte be
overloohed that the meaning to the words and expressions Use'd in a· statute ordi·
ita~ily tak:e their Colour from the context' in which they appear. [539F-G]
•
Deputy Chief Control/er of bnports & §xports, New Delh v.: K.T. Kosa/ram &
Ors., [1971] 2 S.C.R. 507 at 517; and ·State Bank a/India, v. IN.,Sund<va Money,
[1976] 3 S.C.R. 160, referred to.
-
S~ction 6 of the P.reventio-n of Corruption Act, 1947 bars the Courts from takii:ig
· c0gnizance of the offences therein eriumerated alleged· to have been coinmitted. by
a public servant exc("pt ·wi.th the previous sanction of the competent authority emp_owered to grant the requisite.sanction.
T~efefore, when the cOurt is called upon ·
to take cognizance of such offences, it rpust enquire whether there is a valid sanction to prosecute the public· servant for the ·offence alleged to have been committed by him cis public ·servant. Undoubtedly the accused must be ·a public ~ervant
when he is atleged to have corhmitted the offence of which he is accused because
ss. 161, 164, 165 I.P.C. and s. 5(2) of the 1947 Act clearly spell ·out that the Offefices
there in definec.1 can be committed by a public servant/ A tda·I without a valid sanCtion where one is necessary under s.6 would be a trial withqut jurisdiction by. the
court. lt is well settled that the relevant ·date with reference to which a valid sanction is s)ne· qua n'on for taking cognizance of an offence· committed by a public servarit as required by s.6 is the date when the court is called upon to take cognizance
of the·offence of whicQ. he is accused. If, therefore, when the. offence is alleged t'o
have been committed, the accused was a public servant but by the time the court is
called upon to take cOgniZ?-nce of the-offence cornniitted by him ·as public servant,
he has ceased to be a public servant, s. 6 will not be attracted and no sanctiori Vi'ould
be necessary for tahing cognizance of the offence against him. This approach iS in
accOt;d with the policy undei!Ying s."6 in that a public ·s~rva.nt is not to be expOsed to
harassn1cnt of a frivolGLiS or spc_culati...-~prc~ect.tic n. Tf h~ has ceased to be a public
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498
SU~REME COURT REPORTS
[!984] 2 S.C..R.
A
servant in th::nt;>aritime, ·this vJtaJ·consideratioit cc.a5es to 6:idst. [512D; .. H; ~13
A-El
.
C.R. Ban,~i v: Stilt~ oi·Mah"arashfra, [1971] }fs.C.R. 236; R.R. Chari v .. State
of U.P., !1963] 1 S.C.R. 121; ·s.N. Bose v. Staie of Bhar, [1968] •.3 S,C.R. 561;.
Mahcf. Iqbal Ahmed v. State of A.P., p979j 2 .s.C.R. 1007; S.A.
Ve1lkatarama11 v.
··The State. [195~] S.C.R. l04Q·at 1052; K.S. Dha;1nadatan v. Central Govenunent &-·
. B
Ors., [1979] 3 S.C.R. 832, referred to.
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In t·he instant case, lol}g· befOrc the date orl which the togniza.11cc \VaS takeJ1:
by·.the Special Judge, the accused had ceaSed- to hold the office of ,the Chief Minister.
and ~S-. sUch had ceased to he a public.servant i_n his. capaCity as ~hief Minister. A
fortiori no sanction· as_ cont6n1plated _by s. 6 was necessary before co&nizance of th~
offence could .be taken against the accusCd for offences ·alleged to have been conunit-
.
·
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. .,
"ted in his fon:ner capacity as public servant.. [514D......!.E]
. 1··
The subn1ission that if the accused has held. or hold$ a plurality. of offices
· occ~lpying each One of which ~kes ·him a pubiic sefvaJ1t, under s. 6 sariction Or
ea~h Ohc 9f the compete~t authorities entitiCct to . .ren1ovc _him from each one of the
offices held by hith, would be necessary ·and if anyone of 'the co1Tipetcnt .authorities
··fails or·cteclines tri ·graiit sanction,_the court iS pr~luded or prohibited from ti:ik.ing
cognizance of the C?ffcnce with \Vhich the public servailf is· charged, is ncit acceptable ..
Such an interpr'.etation Of s.6' would fender . it as a shield .to .an ·unscrupulous publ~c
· ~~.rvant. Soineorie int~rested in pfote~ting·may shift bim:from one office of pltbli.c •
se_rv<l;_nt fo anothef and there· by.defeat the pro.cess· of Jaw. ·Such an interpretation. is
confrary to ail cannons of 'i.,OllStruction.andJeads to afi absurd end ptoduct .w~ich
of.necessity must be avoideO. [5200; 518F..,......O]
·
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, Tlfe Stat~· (S,}'.E. Hyderabad) v. Arr Conifnodore Kai/ash" Chand,
[19801 2
S.C:R. 697, referred ·to and partly dissented from.
The expression>office' in the. three ~uh-clauses. of s.6(1) clearly denotes. that
o'flice \Vhich ·1f1e pubiic. servan.t misused or abused for corrupt motive<> fo.r which he
is to be prosecuted· and in reSpect .of which ·a sanCtion to PrQsecutc .him. is 'nec.essa.ry •
·by the COmpetent authority entitled to remove him fron1 that office which he has
. 3.bused.
T~e sanction ··tb prosecute a public sCrv~nt can be given .PY an authority
compCtent tO remove him from the offi.Ce which .be has misused or abused because
th~t auth~rity alone would Qe able. to '<no'I".' \"1hether th6re h~s beell a 1nisuse or.
'. abuse ~f the Office by the public servant and 1\ot some rank outsider:. The authority
entitled to graht sanction n1.us't apply its mind to the facts of the case, 'evidf;ll~ cot-·
lected and other incidental facts before aCcording sanction. .A grant of sanc!ion is
not an idle forn1<1lity. but a so·Je1nn arid sacrosanct act which ren10Ves the u1nbre!la
of protection of.govermnent servarlts ~gainst frivolous. prOsecutions and the· aforesa·id req1\iren1cnts n1ust;therefore, be.strictly Con1plied with before any jjroseclition ·
coul~ be launched agairis~ publjc !'iervants. Therefore, it i~ i1nplicit in s.6 that
. sanction· of th;it. con1pet.ent authority alone would be· necessary which is co1npetcnt·
. to remove t~e public servant.from the Office which he is aile~ed to have misused or
abused for corrupt motive and for \vhich a prosecution is intended to be launchecl
a ~aii]st him: [5!6H; 517A~D]
.
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.Mohd. Iqbal Ahmed v. State •f A.,p., [1,7,] 2 s·.c.R. !007, referred to.
) ..
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R. S. NAYAK V. A. R. ANTULAY
499
~
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The fi1iding of the Special Judge that the respondent ·being· M.L.A. was a.public
servant within clauses (12)(a) (35 and (7) ·of s.21 I.P.C: and sanction of the Legislative Assenlbiy to prosecute hin1 was necessary, is riot corfect.. A person.· would
·be a -public se~aOt under clauSe {12)(a) of s. 2-1 T.P.C: if he· falfs under any of the
following three categories: (i) if be is in the service of 'the Governn1ent; or ·(ii) if h_e
is in the pay of the Gov~rninent; or_(iii) if he·is remunerated bY fees or commission
for ihe performance of any public duty by the Government. Looking into the history
. and evolution of s.21 I.P.C. as fraced and .adopted as an- external ·aid· to construe~
""-~
~ tiOn, it is clear that M.L.A .. was not and is not a. 'public ~ervatlt' ,Vithin the _meaning of expression .In any of·the clauses of s._ 2J J.P.C. AssLming that' it wou:ci .not
J..
be legally sound Or correct according to· well-ftCcepted carir.cn_'Of constn.:ctior: of a
..
stafute to construe s. 21(12)(a) by n1ere.historkal eYo}ution of !he. recticr,, 11:e- coJ'istitutiohaliy viilid api)roach would be to look at the ln.nguage coiploycd in t~e rccticn
to ascertian whether M.L.A. iS a public servant within the n1eanir,g of t11e expression
in that section. Dependiti'g up'on the context, 'ot' may be read as 'ar;<r Cut the COlil t
would· not do it unless it is so obliged bee-a use 'or' dces ~ot genei ~tliy n1ean '<!-r.d:
h.nd 'and' does not generally nlean ··or'. The use o(the exp·ression 'or' in the con-
~ .
teJ\t iii' which it is~used in·cl.(12) (a) does appear tO be a disjunctive .. ·Therefore, these
three qategories are independent
categori~s and :if a pe1son falls in any of .~hen1 _he
·Would be a public servant. The que'stiori is whetliet M.;L.A.
falls-urid~r any of the
above three ciitegories ?. It Was .coflccded that M.L.A .. is flot in the service o:J: the
Government but it was contended that M.L.A, is in ihe pay of the Governn1ent.
UJJ-doubtedly, M.L.A. receives a salary ahd allowaiices in his.capacity as M.L;A·
Under· the relevant statute. But does it rnak_e him-a person 'in tJ1c Pay of the Governn1ent'? The word 'pay' _standing by itself is open to various_ shades of meaning and
when the Word is used in a phrase in .the pay.- of' it·is more iibely to have R different
_.+...
connotation. than when standing. by itself. The pbra£e 'in the pay of' would oidi~·
narily import ·the elen1ent of:employrnent or paid c:n1plo)rr:etit or <n·1p1C.yt.d and
paid -by the en1p1oyer. The_ phrase· does -not import ·of _necessity a nlaster-srn ant
4--· rclatio'nship. In its setting the phrase. ~in the pay of the GoveuJn1ent' in cl. (l2)(a)
n1ay compreh~nd a situtation that the persOn may be in the pay of tl1e Goverriment
.;.
without beiug in the employment of the Gnverriment or without lhe:fe te;r g a irasft1Servant r~latiOnship between the person receiving ·the pay and the- Gov_ernmen't as
payer~ NeXt what does the ·expression 'dovernme:ti.f in cl.(12)(3.) of s. 21' I.P.C. conA:
note? Section 171.P.C. 'provides thafthe word. •Government' denotes the Central
Government or the· Governrhent· of a State. Sec. 7 I.P.C. provides tha·t 'every ex.:'
pre.sslon which js explained in any patt ofthE:_Code, is used in-every part Of the Code
"
in conforrriity with the expJanation'. Let it be note{L that Unlike th6 n1odern stat~te
,s. 7 does not provide unless the context otherwise indicate', a pllr~se that prefea}:es·
the dictionary clauses of a ·modein ·statute. ·Therefore, the expressi'on "Gove1Tnment' in- s.21(12)(a) mi.ist either mean the . Central Government or the G:overnment
. "
of a State .. _The ·eentraI·Government being out of consideration the-question is
whether M.L.A-. is in the pay_ of the· Qoverrunent of a State or. ~s remunerate~ by
-:.\
fees for the performance Of aily public duty by the Government of a State. Even
. thoilgh M-.L.A. ~eives pa~ and aiioWances, he is not in the- pa.f.of the Stat~ Government because "tegislatore of a State cannot' be com_prchended in the·express_ion 'State
G.overnmen_t'. This conclusion would go".etn also- the third part of cl.'. (l2)(a) i.e . ..;
'remunerated by fees foi: performance of any public cJuty by the Government. ThCre~ ·
fore, if M.L.A. i~ not in the pay of the Government ~-the Sense of executive goYernment or is notromuneI'a1:ed It~ fees for perfofm'a•_ce of anx public_c:u1f by ttae·exeA
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SUPREME COU.RT REEPOR TS
[1984] Z S.C.R,
cuti\le government, ~rtainly he would not be cotriprehended in the expression 'public
servant' within the meaning of the,exPression in cl: (12),(a). He is thus not a public
servant withiri the nieaning of the @pression in ct (12)(a). This conclusion rein forces
the earlier conclusion reached after examining t~e historical ev01ution. or cl. (12)(a).
l537 A-B; ;360; E; H; 537. H;E; 539 D-E; Hl A; D-F; 543 D-E; 551 A~B]
Evoluuon of Par11a1nentary.Privileges by S. K. Nag,' ·Leg1s!at1ve Bodies Corrupt·
. Pradtices Act, 1925; Pre'Ventwn of Corrupnon Act, 1947 by S'"etlu .and Anand P. 60;
Santhanan1 Co1nm1ttee Report dt. 31-3.-1964;
Lok Sabha Debates_. (Tlurd Senes) ~
Vol. 35, Ck 729 and 731; The Ant1-Corrupt1011_ Laws (Amendment) B1//. 1964 (enacted as Act 40 of 1964); G.A. Monterw v. The State of Ajmer, [1956] S.C.R. 682;
The State of Ajmer Y. Sh1vj1 Lal. [1959j Supp. 2 S.C.R. 739; Prabhashanker Dw1ved1
and Anr. v. The State of .Gujarat, AIR 1970 Gujarat 97; State ,of Gujarat v. Manshank~r Prabhashanker DwzVedi, [i973} l S.C.R. 313; Green v. Premier Glynrohonwy
Slate Co. Ltd., [1928] 1K.B.561at568; Bab1 Manmohan Das Shah & Ors. v.
Bis/mu
_Das, [1967) 1 S.C.R. 836 at 839; K.amta Prasad Aggarwal.etc. v. Executive E11gu1eer,
Ballabgarh & Anr., [1974] 2 S.C.R 827 at 830; M. Ka.rtman1dJ11 v. Union of India,
[1979] 3 S.C.R. 254; Constituent Assembly Debates, Vol. VU p. 984; Rm Sahib Ram
Jawaya Kapur & Ois. v. The State of Punjab. [1955] 2 S.C.R. 225 at p. 2'36;, Shamshet
Smgh & Anr. v. State of Pwyab, [1975] 1 S.C.R. 841; Sardarl Lalv. Union of India
& Ors:, [1971] 3 S. C.R. 461; His Majesty the. Kmg v, Boston & Ors., [1923-24]
33 Commonwealth Law RepO~t 386 .... 82; Earsk1ne May Parflan1e11tary Practice
20 fd1t1Q1t. p. 149, referred to.
The s~bffiission that the acc~sed w~uld be a public servant within the ~~nint
·of the expression any person empowered by law to diiCharge any adjudicatOry ·functiOns, incl. (3) of s.21. l.P.C. must be rejected. Participation ina debate on a motion
of breach of privilege or fOr taking action for contempt of the House and voting
thereOn in a coastitutional -function discharged ·by the members and therefore, it
. cannot be said .that such adjudicatory functions' if it t:an be so styled, -constitutes
adjudicatory function undertaken by M.L.A. a( empoWerd by law. [554 E-Fl
Special Ref No. 1of1964, [1965) 1 S.C.R. 413 at pages 490, 491 and 472;
.. I.C. Golaknath v. State of Punajab, [1967] 2 s.c.R. 672'; Snpadangalavpru v. State
df Kera/a and Anr., [1973] Supp~ S.C.R. 1 referred to.
,.
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.
The Slibmission that M.L.A. would be a public· servant within cl. (7) of &21
i.P.C. must be rejected: Cl. (7) takes within its ambi(;every person who holds any
·office by vir.ture .of which he is emPowered to place or keep any person· in confinement'. Broadly ., stated the expression comprehends police and prison authorities
or those. under a.n obliga~ion by law or by virtue of offiCe tO take into custody and
keep iri Confinefnent an:Y person. To say that M.L .. A. by virtue of his Office. is p~rforining 'Policing or prison officers' duties woulcj. be apart from doing violence to language
lowerillt hiin · in status. Additionally cl.(7) does not speak of·any adjudi catory
function. It appears to comprehend situatioO.s · where as preliminary to or an ·end_
product of an adjudicatory function in a criminal case, wh_ich inay-lead tci imposition
of a prison sentence, and a· p~rson in exercise of the duty t~ be dischar&ed by him
by virtue of his office places or keeps any p'erson iri confinement. [554 G'; 555 F-Hl
.
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~In vi~w ·of tlie finding that M.LA. is not a public servant under clauses (12)(a)~
(3) and (7) of s.21 l.P.C. and no sanction under s.6 _of the Prevention -of Conuptiori
.
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R. S. NAYAK I', A. R: ANTUIAY
501
Act, 1947 is necessary to proseCute hitn, .it is not necessary to ascertain ~hich would
be.the authority ·con1petent to sa.nction 'prosecution of M.L:A·. (557 C]
rn the instant case, the allegations i1t the complaint afe ·all to the · effect 'that
the aCcused misused or abused his office as Cgief Minister.for corrupt motives. By
the tim·e · the Court was called upon to take cognizance df those· offences, the
accused had ceased to hold ·the office of Chief Minister. The sanction to
prosecute him . was granted by. the Governor of. Mahafashtra ·but this aspect
is irrelevant for concluding that no sanction was necessary to prosecute him
under S.6·on the offenCes alleged to have been Committed by the accused. Assnting
.that as M.L.A. the ac:Cused wouid be a ptJ.blic servant under s.21, in ·the absence of
any allegation that he misused or abused his office as M.L.A. that" aspect becomes
immaterial. Further s.6 posf»lates existellce of a valid sanction .for proSeoution of
a pubi.ic servant fo.r offene<aP Punis'hable ··und~r ss.161, 164, 165 J.P.C. 3.nd· s.5 9f the
1947 Act, if they are allege~ to hil-ve bfen committed by a pul?lic servant. Jn view
of the finding that M.L.A. is not a public servant within .the ineaning of the expres~
sion in s.21 I.P.C., no sanction under s.6 is necessary to prosecute him for the offences
alleged to ·have been committed by him. [556 G; 557 A~Bl
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CJi1MINAL APPELLATE JuRISDICTION: Criminal Appeal .iw. 356.
of' 1983
From the judgment and order dated 25-7-83 of the Special Judge,
Bombay in Spetial Case No. 24 of 1983. ·
·
AND
Transferred Ca?e No. 347 of 1983
A.ND
Transferred Case No. 348 o/ 1983
....
Ram Jethmalani P.R.
Vakil, Ms. Rani Jethmalani, Mukesh
Jethma/ani, O.P. Malviya, Shailendra Bhardwaj and Harish Jagatlani
for the appellant.
Dr. L.M. Singhvi, ])a/veer /Jhandari, A.M. Singh~i, S.S. Parkar,
H. Bhardwaj, u,N. Bhandari, H.M. Singh, Ranbir .Singh a~d S,G.'
Hasnain for the respondent.
.
A.shok Desai and Mrs. J. Wad for the petitioner in T.C. No. ·34g
of 1983.
M.N. Shroff for s'tate of. Maharashtra
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K. Parasararr, .Attorney ·General, Ms: A; SubhaSltini, . Gopa/
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· Subramanian, R.N. Puddar and C. V. Subba Rao for Union of India.
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SUPREME COURT REPO.RTS
[1984] 2 s.c.R.
The Judgment ol' the Court was ci.eli~ered
· DESA.I, J: Respondent Abdul Rehman (\ntulay (hereillafter
referred to as the accused) was the Chief Minister of th.e State of Maliarashtra from 1980 till' he submitted liis resignation 011 January 12, 1982,
which became effective. from January 20, 1982. He thus ceased io hold ·
th.e office of. the Chief Minister from January 20, 1982 bui continues
to be it sitting' member or"the Maharashtra L~gislative As&<mbly till
today,
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As the contention"s canvassed before this Court are mainly questio.ns df law, facts at this stage having a peripheral relevance in the
C . course of discussion; it is unnecessary to set onl the prosecution case
• . as disclosed in the complaint filed by. complainant Ramdas Shriniv.as
Nayak (complainant for short) in detail save and except few a perti-
. neni and relevant allegations. In the process the brief history of .the
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· litigation. may a!so be traced.
The complainant moved the Governor of Maharashtra by his
application dated September I, 1981 requesting him to grant sanction ..
. to prosecute the accused as required by Sec. 6 .of the Prevention of
Corruption .Act, Hl47.(' 1947 Act' for short) 'for various offences alle·ged to have been committed by the accused-~nd neal>ly set. out in the
application. Conwlainartt then filed the first complaint in the Court;
of Chief Metropolitan Magistrate, 28th Esplanade, Ijombay on Septem-"
ber ll, I98! being Criminal Case No. 76 iMisc. of 1981 against the
accused and others ·known and unknown collaborators alleging 'that ·
the accused in his capacity as Chief Minister a~d thtreby a public
servant' within the meaning of Sec: 21 of the Indian Penal Code (IPC)
has committed offences under Secs. 161; 165 IPC and Sec. 5 'of the
· 1947 Act, Sec. 3S4 and Sec. 420 IPC read with Secs. 109 and 120-B
IPC. Th\l complaint runs into 31 closely typed pages and carried the .
.Jist of 37 witnesses. The learned Metropolitan Magistrate invited the
ciiniplainant to satisfy him as to how the complaint for offences under
Secs. i6I, 165 IPC and Sec. 5 of the 1947 Act is maintainable wiiliout
·a valid. sanction ~S. contemplated by Sec. 6 of 1947 Act a~d ultimately
-held that in the absence of a valid sanction from the Governor of
· Mahatashtra, the .complaint filed .. by the complaina~t for the afore.
mentioned three offences was riot maintainable. The learned Metropolitan Magistrate accordingly held as per order dated October 6, 1981
. that the complaint was maintainable ohly for offences alleged to have
been committed by the accused under Secs. 384 .aqd 420 read with
· Secs. 109 and 120B of the IPC and directed that the case be fixed for
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R: s. NAYAK v. A. R. "ANTULAY (Desai, J.)
503
examining the' complainant as required by Sec. 200 of the _Cr. P.C.
. The complainant questioned the correctness of this order in Special
Criminal Application No. 1742 of 1981 filed in <he High Court of
Judicature at Bombay.
In (he meantime, another development had taken place which
may be briefly noticed. One. Shri P.B. Samant, who ·has also filed ·an
identical complaint against ..the accused, along with several. others
filed a Writ Petition No. ·1.165 of 1981 in the High Court of Judicature
·at Bombay challenging the method of distributicn uf ad hcc allotmfnt
of cement in the State of Maharashtra -as being contrary to the ru)e
of law and probity in public life. The accused was. the second respondent in this petition, the first and third respondents being the" State of
Maharash.tra and Union oflndia respectively. By ah exhaustive speaking order dated September 23, 1981, a learned Sillg1e Judge of .the
High Court granted rule nisi and made it returnable on November 23,
1981. The writ petition came up ·for hearing before another learned
·Single Judge who by his judgment dated Januar;y 12, 1982 made the
rule ab'jOlute: Probably. as _a -sequef to this decision of the High Court,
the .ac.cused tendered his resignation .as Chief; Minister· on _the same
day"and when.the resignation was accep.ted he ceased to-hold the office
of the Chief Minister with effect from January 20, 1982.
Special.Criminal A~plication;No. 1942 ofl981 filed by the co~-.·.
plainant against the order of the learned Chief Mttropolitw Mag.i- '
strate waS' dismissed by a. Division Bench of the High Court on April
12, 19&2. Not the accused but the State of Maharashtra preferred an
appeal by special leave under Art. 136 of the Constitution against the
decision of.the Division Bench of the High Court rejecting the special
criminal
application.
Thi~. Court rejected the·· application for
special _leave at· the threshold on July 28, 1982. (See State of Maharashtra v. Ramdas Shrinivas. Nayilk ·and Others<ll ), Promptly, on the
heels of the. judgment of this Court. the Governor of Maharashtra·
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on the same day granted the sanction under Sec. 6 of the 1947 Act to
·prosecute the accused in respect of specific charges set out in the order
according sanction, Armed with this sanction, the complainant filed .. G.
·. a fresh complaint in the Court b( the Spedal Judge1 Bombay registered
·as Criminal Case.No, 24.of 1982against the accused.as Accused No." l
and others knowri and unkno"'.JL In this complaint it is broadly alleged
that the. accused who was· the Chief Minisier of the State of Ma.haH
{I) (1982] 2 s.c.c. 463 ..
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.SUPREME COURT REPORTS
(l 984] 2 s.C.R.
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tashtra between the period August 1980 to September 19.'l.J conceived·
a scheme of aggranQ.isement involving obtaiPing o( funds from the
members of the public and putting tbem. substantially under his own
control for the disbursal of the funds so obtained. The complaint
proceeded to refer to the setting up of various trusts and alleged that
the corner-stone of the scheme involved.receipt by the accused of illegal gratification other than legal remuneration as ~ motive or reward
for doing or forebearing to do any official act, or for showing or forebearing to show in t~e exercise of his official functions, favour or ·
disfavour to persons, or for rendering or attempting to render any
service or· dis-service to such . persons who dealt with the State
Governmen.t in general and with public serv;rnts who formed part of
the Government. It was specifically alleged that the scheme devised
by the accused was a .flagrant abuse of hi.s official posifion as Chkf
Minister for obtaining control over funds which would be used. for
purposes 'conducive to. the interest of the accused himself. The"cnmplainant proceeded to set out the abuse of office of Chief Minister by
the accused citing various alleged ii1stances such as distribution of ad
·hoc cement contrary to law and the binding circulars, granting ]iguor
licences as and by way of distribution of Government largesse, issuing
no ·objection certificates for letting out premises by obtaining a price.
for the same. The running thread through various allegations is that
the accused by abusing or misusing his office of Chief Minister obtained
or attempted to obtain gratification other than. legal remunerations
a. ll]Otive or reward for doing or forebearing to do any official act as
Chief Minister or for showing pr forebearing to show in th.e <ox.cercise
of his official functions, favour or disfavour to persons etc. To this
complaint, the order granting sanction to prosecute the accused made
by the Governor of Maharashtra· was ltnnexed. and produced. After
·recording the vericfiation of the complainant, the learned Spec.ial Judge
took cognizance of the offences and issued process by directing a bailable warrant to be issued in the sum of Rs.10,000 with one surety and
made it ,returnabl« on September 3, '1983. ·
·
· On the process being served the accused appeared and sought
exemption from personal appearance which was granted for a day
and· the case was adjourned to October 18, 1982 for \'ecording. the.
evidence of the complainanfand.his witnessesfor the proserntion.
When the case was called out on October 18, 1982, an application
was . moved on behalf of the accused inter alia contending that the
·Court of the learned special Judge had no jurisdiction i,n view of.the
provision contained in Sec. 7 of the Criminal Law Amendment Act,
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R· s. NAYAK v. A· R· ANTULAY (Desai, J.)
. 505
1952 E'l952 Act' for s]lort) and that no cognizance can be taken of.
offences punishable under Secs. 161, 165 IPC and ~ec. 5 of the 1947
Act on. a private complaint. The case was at that time pending in the
Court of the special Judge presided over by" one Shri P.S. Bhutta. _The
learned special Judge by his order <lated October 20, 1982 rejected
-both the contentions and-set down the case for November 29, 1982
·for recording evidence of the p~osecutipn. The lrnrned special Judge
made it abundantly clear that under no circumstance the case would
be adjou;ned on the next. occasion and if any revision or appeal is
intended to ·be filed against the order, the.learned counsel for the accuse_d should-give advance notice to theJearned counsel for fhe complainant.
The accused filed Criminal Revision Application
No~ 51_0 of
1982 against the order of the learned special Judge dated October 20,
i982 rejecting his application. 01) January 16, 1983, the Government
. of Maharashtra 'issued a notification in exercise of the powers conferred
by sub-sec. (2) of Sec. 7 of 1952· Act and in modification of the earlier
·Government Order dated· April 12, 1982, directing that in Greater
Bombay on and after the date of the. notification the offences specified
in sub,sec. (I) of sec. 6 of the 1947 Act which are investigatec'. by the
Anti-Corruption Bureau of Police fo ·Greater Bombay, except special
cases No. 14, 15 and 16 of 1977 and Special Case No. 31 of 1979 to
37 of 1979 (both inclusive) shall.continue to be tried by Shri R.B. Sulc.
The net outcome of this notification was that Special Case No. 24 of
1982 pending in the. Court _of Special Judge Shri P.S. Bhuita would
stand transferred to .the Court Df Shri R.B. Sule, Additional Special
Judge for Greater Bombay.
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On a reference by the learned. Siugle Judge, a Division Bench
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of the Bombay High Court heard and dismissed .on March 7, 1983 ·
Criminal Revisio~ Application No. 510 of 1982 filed by the accused
against the order of learned special Judge Shri P.S .. Hhutta dated October 20, 1982. 'The Division Bench in ·terms held that the private complaini was maintainable' and as the required no.tification has al~eady
~been issued, Shri R.B. Sule will have jurisdiction to try Special Case
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No. ·24 of 1982. The learnecl trial Judge Shri R.B. Sule on receipt of
the record of the case issued a notice on April 27, 1982 calling upon
all parties to appear before him on Apri121, 1983. It appears .on July
8, 1783, two applications. were moved on behalf of the ai;cu~ed u;·ging
the learned trial Judge; (i) to discharge the accused inte.r a/ia on the
H
ground that the charge was groundless and that even though the accused·
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SUPREME COURT REPORTS.
[1984] .2 S.C.R •.
had· ceased to lie. the Chief Minister, on the date of taking cognizance .
. of the offences, he was a sitting member of the Maharashtra Legislative
. Assembly and.as such a public servant and in that capacity a sanction
. to prosecute him would have to be given by the Maharashtra Legisi~
tive Assembly and the sanction granted by the Go Vernor would. not
be valid in this behalf. The second petition· requested·. the .learned ·
·Judge to postopone the case tiII the petltion for sprc'ialleave fired by ·
· . the accused against the decision. of the DiviSicn· Bei1ch of the High
· .. Court holding that the private ccmplaint was rraintai1,ab!e is dispo.scd
·of. Both thes.e applications came up for hearing before Shri RB.. SUic,
who by his order dated July 25, 1783 upheld the contention of .the
accused that M.L.A. was ·a public servant within the meaning of the
expression in Sec: 21 (12) (a) lPC and.that unles.s a sanction to prosernte
him by the. authority. competent to remove him from his offiGe as
M.L.A. was.obtained which in the opinion of the learned Special Judge .•
was Maharashtra Legislative Assembly, the accused is entitled to be
discharged. So saying, the learned
Judge discharged the accused.
: The complainant Jiled a petition for special leave io appeal No. l 850
. of 1983 and a Writ Petition (Cr!.) No. 145 of i983 against the deciskn
of the. learned special Judge. Both these matters came up before this
Court on August 3, 1983 when the matters were adjuorned to August
' 10, 1983 to enable the petitioner, original complainant to fik a criminal
E
revision application against the order ·or the learned special Judge in
· the High Court. Accordingly, the coinplainant filed Criminal RevisiOn.Application No. 354 of 1983 in the ·High Court against the order
of learned special Judge Shri R.B. Sule. This. Couri ultimately granted
speciaqeave to appeal as also ·ruie nisi in the writ petition. By ~n order:
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'made by this Court, the criminal revision application filed by the peti~
F . tioner stands transferred to this Court.
·
.It may be mentioned that .ihis Cour·t has granted special leave .
to the accused· against the decision of the Division Bench of the Bombay
High Courtholding that.a private' complaint is maintainable,etc. Crimi- ·
nal Appeal No. 247of1983 arising out of the said special leave petition
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is being heard along with this matter but that \Vill be dealt with separa~
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While discharging the accused, the learned special Judge held
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that the. material date for deciding the applicability ,of Sec .. 6 of the
194i Act is the date on which the court is asked to ·take cognizance
'ff
of the offence. Proceeding further it was held that even though 1he
accused had ceased to hold the office of the Chief.Minister on the date
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R; s. NAYAK v. A. R; PNLULAY ((Desai, J.)
507
on which cognizance 'was taken by the learned special Judge, Shri
Bhutta, yet ·on. that date 'he was a sitting M.L.A: and was therefore,
· a public servant wit.bin the meaning of the expresS!on in Sec. 21 (12)(a)
in a~much as the M.L.A. is a person in the pay of the Government or
at any rate he is remunerated by .fees for ·performance of public duty
. by the Government .and therefore, he is a public servant.. As a corol. ·
. lary, the learne~ Judge held that as· on the da.te. of taking cognizance
of the offence the accus~d was a public servant, he could not be prose,
cuted· without a valid sanction as contemplated .by Sec. 6 of ihe )947 ..•
Act. The learned ·Judge further held that the M.L.A.,holds an office .
.and he can· be removed from that office .by the Legislative Assembly
because · the latter has the, power to expel a member which would ·
amount to . removal from· office. The learned Judge further held that
as there was no sanction by the Maliarashtra LegiSJative Assembly
to prosecuteo the accused and as the Governor\had no power· to sanA
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is entitied to be discharged forthe offences under Secs. 161, 165,' J20•B, .
109 IPC and Sec. 5 of the.