Author: Vaishnavi Navghare.
2007 (1) SCC 1
NAMES OF PARTIES
Petitioner: Parkash Singh Badal and Anr.
Respondent: State of Punjab and Ors.
Justice Arijit Pasayat;
Justice S.H. Kapadia.
The article is a case analysis of the case of Parkash Singh Badal and anr V. State of Punjab and Ors1. It is a 2007 judgement. This judgement is related to the importance of sanctions for the public servant. Sanctions are basically immunity provided to public servants which protects them from the malice and false proceeding. This judgement basically deals with the question of need of sanction under section 197 of the criminal procedure code as well as when the sanction can be granted to public servant, as he is not always immune from the allegations.
In this article author has discussed the two judgments first is, Parkash Singh Badal and anr v. State of Punjab and Ors (2004) judgment which is a criminal writ petition and second is, Parkash Singh Badal and anr v. State of Punjab and Ors 2007 judgement, to get the fair understanding of the facts and principle that is laid down in this case with its critical analysis.
Punjab and Haryana High court2
Justice Swatanter Kumar and Justice Amar Dutt.
Prakash Singh Badal was former chief minister of Punjab and in 2004 he was the leader of opposition in legislative assembly of state of Punjab. His son Shukhbir Singh Badal was secretary of Shriromani Akali Dal, in 2004 he was member of Loksabha.
Captain Amarider singh, present Chief minister of Punjab was once also their party i.e. Shriromani Akali Dal. Later he was denied the ticket to assembly election in 1997 therefore he left the party and joined the congress and become president of Punjab Pradesh Congress Committee.
In 2001 Amarinder Singh wrote letter to Prakash Singh Badal thanking him for accepting the request of exchange of properties and also mention the vast amount of property he have in India and outside India in the letter.
As per Prakash Singh Badal in 2002 Assembly election Amrinder Singh started defamatory campaign against him and throw some baseless allegations on him and his son, on which Prakash Singh Badal and his son also lodged the suit for damages against him.
In 2002 a notification was released by state of Punjab in which they extend the jurisdiction of superintendent of police, vigilance bureau Punjab.
In June 2003 one Balwant Singh Dhaliwal who was presumed to be close to CM Amrinder Singh filed complaint against Prakash Singh Badal and his son Shukhbir Badal under Section 420, 467, 468, 471, 120-B of Indian Penal Code 1860 and Section 7, 8, 9, 10, 13(1) with section 13(2) of Prevention of Corruption Act, 1988.
After this State of Punjab issued the another notification, in which they appointed the Session Judge and Additional Judge for trial of offense in section 3 of Prevention of Corruption Act, 1988.
Prakash Singh Badal (petitioner 1) his son Shukhbir Singh Badal (petitioner 2) challenges the notification issued by the State in 2003.
CHALLENGES RAISED BY BOTH PETITIONERS
The 2003 notification of the state is invalid and should be quashed.
Notification has to be issued by prior consultation of the high court and therefore it goes against the article 50 and 235 of the Constitution of India.
State of Punjab cannot issue notification related to work and transfer only central government has power to do so.
Cases related to such offence must exist before the issuance of the notification.
State of Punjab has no jurisdiction to go beyond the limits of territorial jurisdiction by means of notification, such exercise of power is against the civil Procedure code and Prevention of Corruption Act.
The notification was not published or gazetted and therefore is becomes ineffective.
As the both petitioners are public servants the special judge cannot summon or take the cognizance of trial without sanctions, as per section 19 of Prevention of Corruption Act and Section 197 of Criminal Procedure Code.
Prosecution does not gave the petitioners the chance to explain there conducts before the filing of the charge sheet and also does not conduct and prior inquiry as per section 173 of Criminal Procedure Code.
Petitioner claimed that entire prosecution has been launched with male-fade intention and arbitrarily for the political gains.
Petitioner also claimed that the special judge is incompetent and erred by law in deciding such cases and therefore the prosecution should be stayed.
Learned counsel for the petitioner relied upon the judgement of Abdul Wahab Ansari V. State of Bihar3 and S. Balakrishan Pillai case to content that petitioner did the act in course of his office (official duty) therefore sanction is necessary and the plea of sanction must be consider by the court even prior framing of the charge.
But court relied on the judgement of R.S Nayak v. Abdul Rehman Antulay and another4 In which it is sated that once the public servant cease to hold the office it is not obligatory and necessary to obtain the sanction under Section 6 of Prevention of Corruption Act. The court while dismissing the petitioner’s argument said that;
“The relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. If, therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, but if he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution.”
In this case Prakash Singh Badal already cease the office as Minister of Punjab before taking cognizance therefore no sanction is necessary under section 6 of Prevention of Corruption Act. (Permission of speaker was already taken before filing of charge sheet). Therefore the special judge is not bared to take the cognizance of offence.
On part of the issuance of notification and appointment of judges court said that as per Section 3 of of Prevention of Corruption Act, government can appoint as any judges as they want and also judges are not bared from taking the cases under this act. Notification was issued with the consultation of high court and it gives jurisdiction to court to try cases under Section 3 of the act.
Court stayed the argument related to the Mala- fade intention behind the filing the case, and said it will be seen in trial of the case.
Along with this court also dismiss all the arguments of the petitioner and his son saying that they are not based on merit and special judge should not get influenced by this argument during the trial.
The sanctions can be termed as official permission or the approval to undertook certain action.
The sanctions are generally necessary in legal context in two areas; When the offenses come under chapter VI of the IPC which includes the offenses like sedition, criminal conspiracy, waging war against the Government etc. Second is for the public interest, i.e. to prevent the public servants from harassment and malice, false allegations etc. for the smooth functioning of the system.
Section 21 of the Indian Penal Code provides the definition of the term ‘public servant’. The section gives the twelve heads under which the public servant are categorize namely;
“a military officer, officer of court of justice, jury man, assessor, member of panchayat, arbitrator, officer of government who deals with the safety, person who is empowered to conduct election, every person who is liable for the government remuneration and fees”.
Both the petitioners Prakash Singh Badal and his son Shukhbir Singh Badal file appeals challenging the prior judgement of Punjab and Haryana High Court.
Stand of the appellants was each of proceedings are based on the complaint which is lodged with mala-fied intention having a political vendetta and all the allegations are vague and do not show commission of any offence.
The judgement of High Court was relied on the judgement in R.S Nayak v. Abdul Rehman Antulay, effect of Section 6(2) of old act of Prevention of Corruption Act corresponding to section 19(2) of new act of Prevention of Corruption Act was not considered, although the judgement was considered incurium in past.
Learned counsel for the petitioner said that in the case of P.V. Narasimha Rao v. State5 it was concluded that the authority who is competent to remove the officer can only give the sanction. Court further said that “It is submitted that the offenses alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under Section 197 of the Code is mandatory”.
Petitioner further contented that filing the case at Mohali police station and declaring, extending the jurisdiction of superintendent and declaring the police station for the purpose of investigation of the case, establishment of the court for trial with the permission of the high court this all show that there is Mala-fide intention behind lodging complaint and also it is all done to harass the petitioners.
On this the learned counsel for respondent stated that the decision in case of R.S Nayak v. Abdul Rehman Antulay is not per incurium and it lays down the correct position. Also no mala-fied intention in so far has found in any allegation.
The view that expressed in the case of R.S Nayak v. Abdul Rehman Antulay is as follows;
“Under Section 19(1) of the prevention of the corruption Act, previous sanction is prescribed for a public servant if;
He is a public servant at the time of taking cognizance of the offence and
The accused continues to hold office who is alleged to have been misused at the time of taking cognizance of the offence by the Court”
Court relied on the following judgement while deciding in sanction;
Venkataraman v. State6 in this case it was stated that ordinary meaning of the Section 6 is when the court ask to take the cognizance of the offence, the person committed the offence should be public servant and competent to be removed from the office by the competent authority then only the Section 6 of the prevention of corruption act will be applicable. Same was held in the case of Mohd. Iqbal Ahmad v. State of A P7.
But in the present appeal the appellant ceased to be public servant and has already left his office as chief minister when the court took cognizance of the offence. Therefore Section 6 of the act will not be applicable and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.
R. Bansi’s case it was stated that But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him a public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under Section 6 of the Act.
The law commission in 41st report recommends amendment to section 197 of criminal procedure court and grants protection to the pubic servants by previous sanction. This widen the scope of the definition of public servant and offenses for which they are going to tried is already given in section 161 to 165A of the IPC. New section 19 was enacted in the new act of prevention of corruption act alike the section 6 in the old act. No words in the section 6 suggests that the previous sanction is necessary for the cognizance by court.
On the part of incurium, court said that it only applies when the court omits to take into consideration a binding precedent of the same court or the superior court on the same issue or court omits any statue.
It was held by the two judge bench that bench;
“A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 197 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction.”
“The correct legal position, therefore, is that an accused facing prosecution for offenses under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offenses. But the position is different in cases where Section 197 of the Code has application.”
Court further stated that Section 8 and Section 9 of the Act are referring to the time and the place of the act that are more specific materials and this sections will not be applicable to him but will be applicable to his wife and son.
On the context of mala-fide allegations court said that it cannot be taken into consideration as the person who file the case is not party to the case and hence it cannot be proved.
Prakash Singh Badal was former chief minister and was the leader of opposite party and his son is member of Lok-Sabha in 2004 when the first case actually started. In this case both the petitioner were charged under the offence of corruption under prevention of corruption act. In 2002 and 2003 two notifications were issued by the State of Punjab related to extend of jurisdiction of police superintendent and assignment of the special judge to conduct trial under Section 3 of the prevention of corruption act. The two petitioner challenge the notification stating that state of Punjab cannot issue such notification and it also cannot file the charge sheet against the public servant without sanction.
On which court rely on the judgement of R.S Nayak v. Abdul Rehman Antulay and stated that Prakash Singh Badal already cease the office as Minister of Punjab before taking cognizance therefore no sanction is necessary under section 6 of Prevention of Corruption Act.
Against this decision petitioner again filed the appeal stating that Section 6(2) of old act of Prevention of Corruption Act corresponding to section 19(2) of new act of Prevention of Corruption Act was not considered in the previous judgement, although the judgement was considered incurium in past. On this court gave the judgement that the public servant when he ceased to be a public servant on the date when the court took cognizance of the said offenses cannot ask for the immunity under section 6 of the prevention of corruption act.
As per me this decision is valid and needed in order to curb the illegal activities of the MLA and MP, and other public servants so that they cannot take the undue advantage of this immunity, by burying the truth by their power.
In order to conclude we can say the sanctions act as the immunity to the public servants, and allow them to function smoothly without any necessary hurdle, which ultimately allows the government bodies to run efficiently.
Sanctions protect the public servant who is in the office from the false allegation by informing and enquiring the person about the offence before filing the charge sheet. But it does not mean that each time in every situation the public servant are immune, as the the above case the act which is committed under the colour of authority for the benefit of his own will not be given immunity.
Also the need of section 197 of criminal procedure code is not necessary as soon as the case is lodge its applicability will be decided at different stages in the case. Need of the sanction will be decided on the facts and as per different stages in the case.
- 2007(1)SCC 1[↩]
- Parkash Singh Badal and anr v. State of Punjab and Ors (2004) writ petition 9410 of 2004.[↩]
- 2000 (4) RCR (Crl.) 572.[↩]
- 1984 (2) SCC 183.[↩]
- 1998 (4) SCC 626.[↩]
- 1958 SCR 1040[↩]
- 1979(2) SCR 1007.[↩]
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