State Of West Bengal vs Shyamadas Banerjee & Anr

as "the Special Courts Act, 1949"), can take 2

cognizance of an offence against a member of

the State Legislative Assembly (hereinafter

referred to as "M.L.A.") when he had ceased

to be a M.L.A., though the offence was

alleged to have been committed when he was a

sitting M.L.A.

3. On the basis of certain newspapers reports

one Nikhil Kishore Roy filed a Public

Interest Litigation in the Calcutta High

Court against the respondent No.1, Shri

Shyamadas Banerjee, alleging that he had

misused his official position as M.L.A. by

submitting forged and fictitious medical

bills and fees for prescription for

Rs.1,65,530.30 on account of the treatment of

his wife and his mother between 8.9.1998 to

10.11.1998. The said Writ Petition, being

No.1311 of 1999, was disposed of by a

Division Bench of the Calcutta High Court on 3

23.6.1999, holding that the writ petitioner

could have lodged a First Information Report

or filed a complaint petition before the

concerned Magistrate. Thereafter, on the

basis of the F.I.R. lodged by Shri Nikhil

Kumar Roy investigation was started under

Section 468, 471, 420 and 511 of the Indian

Penal Code, (hereinafter referred to as

"IPC"), by the Hare Street Police Station.

The respondent No.1 surrendered before the

Chief Metropolitan Magistrate, Calcutta, on

17.1.2000, and was released on bail. Charge-

sheet was filed on 16.1.2003, on the basis

whereof the Special Court assumed

jurisdiction under the Special Courts Act,

1949, against the respondent No.1 treating

him to be a "public servant" and framed

charges against him under Section 420/468/471

and 511 IPC.

4

4. Aggrieved by the order of the Special Judge

4th Court, Calcutta, taking cognizance on the

basis of the charge-sheet filed, the

respondent No.1 moved the High Court in

revision (CRR No.1931 of 2003) alleging that

the cognizance taken was illegal since no

sanction had been obtained by the

investigating agency to file a charge-sheet

against him. The High Court disposed of the

revision petition granting liberty to the

trial Judge to proceed with the matter while

the respondent No.1 was given liberty to

adjudicate the points which had been taken by

him in the revision application before the

learned trial Judge. Such application was

made by the petitioner on 10.9.2003, but the

same was rejected by the learned trial Judge

which impelled the respondent No. 1 to once

again move the High Court in revision )CRR

No.2364 of 2003).

5

5. During the hearing of the revision

application, at the very outset it was urged

on behalf of the respondent No.1 that since

he had ceased to be a M.L.A. when cognizance

was taken by the learned Special Judge, such

cognizance was bad and the proceedings taken

on the basis thereof stood vitiated. It was

contended that the Special Courts Act, 1949,

enabled a Special Court to proceed against a

M.L.A. defined as a "public servant" under

the Prevention of Corruption Act, 1947 and

not under the Prevention of Corruption Act,

1988. It was also contended that even if the

respondent No.1 was a M.L.A. at the time of

commission of the alleged offence, he ceased

to be so when the charge-sheet was filed and

the cognizance was taken thereupon. It was

further contended that there was no specific

statutory provision which provides that even 6

though a person ceases to be a public

servant, he could still be deemed to be a

public servant for the purpose of trial under

the provisions of the Special Courts Act,

1949, in respect of offences alleged to have

committed before he ceased to be a public

servant. It was submitted that, in the

absence of such a provision, the charges

framed and cognizance taken by the Special

Judge was bad in law and liable to be quashed.

6. After examining the aforesaid question in

detail, the learned single Judge of the High

Court was of the view that the respondent

No.1 was neither a M.L.A. nor a public

servant when cognizance was taken by the

Special Judge. No sanction was, therefore,

necessary for his prosecution, but at the

same time the trial of the case could not be

proceeded by the Special Judge. On the basis 7

of the aforesaid conclusion, the High Court

allowed the revision application and quashed

the cognizance taken by the Special Court,

but observed that the same would not prevent

the prosecuting machinery from initiating

further and/or fresh proceedings in

accordance with law before the Court having

jurisdiction to entertain the same.

7. It is against the said order of the High

Court that the instant appeal has been filed

by the State of West Bengal.

8. On behalf of the appellant it was submitted

that in view of the provisions of Section 4

of the Special Courts Act, 1949, the High

Court had erred in quashing the cognizance

taken by the Special Court. It was contended

that it was in his capacity as M.L.A. that

the respondent No.1 had submitted two claims

for reimbursement of Rs.1,65,530.30 towards 8

medical expenses said to have been incurred

for treatment of his wife and mother at a

particular nursing home. The claim included

the price of medicines said to have been

purchased from a particular shop. However,

when the bills were scrutinized it was found

that there was no existence of either the

nursing home or the medicine shop at the

addressed provided by the respondent no.1,

who had abused his position as M.L.A. for

wrongful gain and to cheat the Government

exchequer.

9. One of the other points urged on behalf of

the appellant is that the earlier writ

petition filed by respondent No.1 for

quashing of the FIR had been rejected on

10.12.1999, and, thereafter, on completion of

the investigations charge-sheet was filed

against the respondent No.1 before the 9

Special Judge 4th Court, Calcutta, who,

assumed jurisdiction under the provisions of

the Special Courts Act, 1949, treating the

respondent No.1 to be a public servant. It

was urged that since the offence complained

of was said to have been committed when the

respondent No.1 was a sitting M.L.A., the

charge-sheet had been rightly filed before

the Special Judge on which cognizance was

taken and charges were framed.

10. Mr. Altaf Ahmed, learned Senior Counsel

appearing for the appellant, submitted that

the question as to whether a M.L.A. is a

public servant within the meaning of Section

21(12)(a) IPC was no longer res integra

having been decided by a Constitution Bench

of this Court in the case of P.V.Narasimha

Rao vs. State (C.B.I./S.P.E.), (1998) 4 SCC

626, wherein in clear and unambiguous 10

language it was held that Members of

Parliament and M.L.A.s are public servants.

11. On the question of sanction for prosecution

it was urged that if a public servant takes

part in any activity, which is not part of

his professional duties, no sanction for

prosecution, as contemplated in Section 197

Cr.P.C., would be necessary to prosecute such

a public servant before the Special Judge. In

this regard, reference was made to another

Constitution Bench decision of this Court in

Satwant Singh vs. The State of Punjab, AIR

1960 SC 266.

12. It was contended that in the facts of the

case the order of the High Court could not be

sustained and was liable to be set aside. 11

13. The stand of the respondent No.1, on the

other hand, was that since the prosecution

had been launched under the Special Courts

Act, 1949, having regard to Section 10

thereof, the provisions of the Prevention of

Corruption Act, 1947 (hereinafter referred to

as "the 1947 Act") would be applicable in the

instant case and the respondent No.1 would

have to answer the description of "public

servant" as defined under the said Act and

consequently under Section 21 IPC for such

prosecution. According to the respondent

No.1, it would, therefore, have to be decided

for the purpose of maintaining the

prosecution whether an accused who was a

public servant on the date of commission of

the offence would also have to be a public

servant when cognizance of the offence was

taken by the court.

12

14. Mr. Pradip Ghosh, learned Senior Counsel who

appeared for the respondent No.1, submitted

that the High Court had arrived at the right

conclusion though on a reasoning which was

faulty. Reference was made to the provisions

of Section 21 IPC and in particular clause

(a) of the 12th description thereof, in

support of the stand taken by the respondent

No.1 that on the date when cognizance was

taken by the Special Court he had ceased to

be a public servant and that the Special

Judge could not, therefore, have assumed

jurisdiction in the matter.

15. Mr. Ghosh submitted that the aforesaid

question had been answered by the

Constitution Bench in R.S. Nayak vs. A.R.

Antulay, (1984) 2 SCC 193, in which in no

uncertain terms it had been held that a

M.L.A. is not a public servant within the 13

meaning of Section 21 IPC and that no

sanction was necessary to prosecute a M.L.A.

for any offence alleged to have been

committed by him while he was a sitting

M.L.A. when he ceased to be a M.L.A.

Consequently, the Special Court had no

jurisdiction to either entertain the charge-

sheet filed on the basis of the FIR lodged by

Shri Nikhil Kumar Roy or to take cognizance

on the basis thereof.

16. Regarding the decision in P.V.Narasimha Rao's

case (supra), the stand taken on behalf of

the respondent No.1 was that in the said case

the Constitution Bench was considering a

prosecution under the Prevention of

Corruption Act, 1988, wherein a "public

servant" has been differently defined as

against the definition in the 1947 Act. 14

17. Mr. Ghosh submitted that the instant case was

one of inherent lack of jurisdiction since

the Special Judge under the 1949 Act had no

jurisdiction over the respondent No.1 who

ceased to be a public servant when his term

as a M.L.A. came to an end. Mr. Ghosh

submitted that, having regard to the decision

in A.R.Antulay's case (supra) the respondent

No.1 was never a public servant within the

meaning of Section 21 IPC.

18. From the case made out on behalf of the

respective parties, there is no dispute that

the respondent No.1 was elected as M.L.A. on

16.5.1996 and he ceased to be so on

20.7.2000. There is also no dispute that the

FIR was lodged against the respondent No.1 on

28.6.1999 when he was a sitting M.L.A., and

that charge-sheet was filed on the basis

thereof on 16.1.2003 and charges were framed 15

on 29.7.2003. In other words, while the

alleged offence was said to have been

committed when the respondent No.1 was a

sitting M.L.A., charges were framed and

cognizance was taken long after he had ceased

to be a M.L.A. Accordingly, the main question

which falls for decision in this case is

whether on the respondent No.1 ceasing to be

a M.L.A. the Special Judge under the Special

Courts Act, 1949, could have assumed

jurisdiction in the matter.

19. As to whether a Member of Parliament or a

Member of a Legislative Assembly are public

servants or not within the meaning of Section

21 IPC, has fallen for the decision of the

two Constitution Benches of this Court. While

in A.R. Antulay's case (supra) it has been

categorically held that a M.L.A. is not a

public servant within the meaning of Section 16 21 IPC, in P.V. Narasimha Rao's case (supra)

the said view was distinguished and the

majority view was that a Member of Parliament

and the State Legislatures are public

servants for the purpose of the Prevention of

Corruption Act, 1988.

20. Even if we proceed on the basis of the view

expressed by the Constitution Bench in

P.V.Narasimha Rao's case, we are still faced

with the question whether the same could be

applied in regard to assumption of

jurisdiction by the Special Court under the

Special Courts Act, 1949, wherein reference

has been made to public servant as defined in

the Prevention of Corruption Act, 1947, and

by extension Section 21 IPC. In the said

context it is necessary to refer to the

provisions of Section 4 of the Special Courts

Act, 1949, which reads as follows: 17

"4. Offences to be tried by Special Courts.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law in force, the offences specified in the schedule shall be triable by Special Courts only:

Provided that when trying a case, a Special Court may also try any offence other than the offence specified in the Schedule, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial: Provided further that every offence specified in the Schedule shall be tried by the Special Court constituted for the particular area within which the offence was committed and where there are more than one Special Court constituted for any particular area, by such one of them as may be specified by the State Government by notification in the Official Gazette."

21. The schedule referred to in Section 4 of the

Act provides for offences triable by Special

Judges. Paragraphs 2 and 3 of the said

Schedule provides as follows:-

18

"2. An offence punishable under Section 409 of the Indian Penal Code (Act XLV of 1860), if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government company in respect of property -

with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.

3. An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent."

19 22. Section 2 of the 1947 Act which defines

public servants is also reproduced

hereinbelow:

"2. Interpretation -

For the purpose of this Act. `public servant' means a public servant as defined in Section 21 of the Indian Penal Code."

23. In other words, in order to fall within the

scope of the 1947 Act an accused person will

have to answer the definition of "public

servant" as indicated in Section 21 IPC. The

decision in P.V. Narasimha Rao's case (supra)

was dealing with a public servant as defined

in Section 2(c)(viii) of the 1988 Act, which

reads as follows:

"2. Definitions -

In this Act, unless the context otherwise requires -

(a) xxx (b) xxx (c) "public servant" means,- 20

(i) xxxxx (ii) xxxxx (iii) xxxxx (iv) xxxxx (v) xxxxx (vi) xxxxx (vii) xxxxx

(viii)any person who holds an office by virtue of which he is authorized or required to perform any public duty."

24. Since in the instant case we are concerned

with the prosecution under the Special Courts

Act, 1949, we will have to confine ourselves

to the definition of "public servant" within

the scope of the 1947 Act which includes the

definition of "public servant" within the

meaning of Section 21 IPC. The said provision

having been considered by the Constitution

Bench in A.R. Antulay's case, we are not

expressing any opinion on that score.

However, the other question which still

remains to be answered is whether the

provisions of the Special Courts Act, 1949,

would continue to apply to the respondent 21

No.2 when he ceased to be a public servant

once he had completed his term as M.L.A.,

even if the decision in P.V.Narasimha Rao's

case that Members of Parliament or State

Legislative Assembly are public servants for

the purpose of the Prevention of Corruption

Act, 1988, is applied to the facts of this

case.

25. The aforesaid question has also been answered

by the Constitution Bench in A.R. Antulay's

case (supra) while considering the provisions

of Section 6 of the 1947 Act which deals with

grant of sanction for prosecution of public

servants. Faced with a similar situation

where prosecution had been launched against

Shri A.R. Antulay when he was Chief Minister

of Maharashtra, but had ceased to hold the

said post though he continued to be a sitting

M.L.A. of the State Legislative Assembly when 22

cognizance was taken, the Constitution Bench,

inter alia, held that the object of providing

for previous sanction for prosecution of

public servants was to save the public

servant from harassment of frivolous or

unsubstantiated allegations. It was observed

that the policy under Section 6 is that there

should not be unnecessary harassment of a

public servant. It was also held that the

accused must be a public servant when he is

alleged to have committed the offence which

could be committed by public servants. While

holding further that a trial without a valid

sanction, where one is necessary under

Section 6, is a trial without jurisdiction,

it was also held that a valid sanction is

required when the Court is called upon to

take cognizance of the offence. If,

therefore, when the offence is alleged to

have been committed, the accused was a public 23

servant, but by the time the Court takes

cognizance of the offence alleged to have

been committed by him he had ceased to be a

public servant, no sanction would be

necessary for taking cognizance of the

offence against him. As a necessary

corollary, if the accused ceases to be a

public servant when the Court takes

cognizance of the offence, Section 6 is not

attracted. In other words, the accused loses

his protective cover under Section 6 of the

1947 Act or Section 197 Cr.P.C., and he is

open to prosecution without sanction having

to be obtained, which also necessarily means

that the Special Judge under the Special

Courts Act, 1949, would cease to have

jurisdiction over the accused.

26. The issue which was decided in P.V. Narasimha

Rao's case (supra) which has been relied upon 24

on behalf of the appellant, deals with a

situation contemplated under the Prevention

of Corruption Act, 1988, while in the instant

case we are concerned with a prosecution

under the Special Courts Act, 1949, which

specifically refers to the provisions of

Section 21 IPC. That is the distinguishing

feature of the two decisions and since we are

considering a case involving the provisions

of the 1947 Act, we are of the view that the

decision in A.R.Antulay's case is more

apposite to the facts of the instant case.

27. Since the respondent No.1 ceased to be a

Member of the State Legislature at a point of

time when cognizance was taken by the Special

Judge 4th Court, Calcutta, such cognizance and

the proceedings taken on the basis thereof

must be held to have been vitiated. 25

28. We, accordingly, dismiss the appeal and

confirm the decision of the High Court.

...................................................J. (ALTAMAS KABIR)

...................................................J. (MARKANDEY KATJU)

New Delhi Dated: 3.09.2008