State Th. Cbi vs Parmeshwaran Subramani & Anr

prosecute a Public Servant under Section 12 of the

Prevention of Corruption Act, 1988.

3. The brief factual matrix of the case is as under:

On source information the Central Bureau of

Investigation, Goa registered a preliminary enquiry being PE

2(A)/2002/CBI/ACB against the respondent no. 1 and

others. The respondent No. 1 was the then Commissioner of

Customs and Central Excise, Panaji. It was alleged that

respondent no. 1 along with others purchased 48 ready built

flats for Customs Department from the respective firms at

an exorbitant price of Rs. 3,55,69,150/- though the actual

market value was much less than the price paid. It was

further alleged that undue favour of respondent no. 1

caused huge loss of Rs. 1.04 crores to the department. Shri

Ram Avtar Yadav, Inspector CBI/ ACB/ Goa was conducting

the enquiry into said allegations.

3 4. The respondent No. 2 was the Inspector of Central

Excise, Goa. It was alleged that on 24.9.2002, the

respondent no. 2 made a request on telephone to Shri Ram

Avtar Yadav, Inspector to meet him in connection with some

personal work. On the next day i.e. 25.9.2002, the

respondent no. 2 met Shri Ram Avtar Yadav, Inspector and

during the course of meeting he made a request on behalf of

the respondent no. 1 to close the case and also conveyed

that the respondent no. 1 wanted to meet him in connection

with the said case and to offer some gratification. On the

same day, the Inspector (Complainant) lodged a written

complaint against both the respondents before

Superintendent of Police, CBI/ACB/Goa. Accordingly, RC8(A)

/20J2 /CBI /ACB/ Goa, was registered against both the

respondents. Both the respondents met the complainant at a

restaurant and offered him a bribe of Rs. 1 lakh. On

26.9.2002, the respondent no. 1 withdrew an amount of Rs.

50,000/- from his savings bank account and handed over

the same to the respondent no. 2 to deliver the said amount 4

as part of the bribe to the complainant. A trap was laid in

the presence of two independent witnesses. The respondent

no. 2 was caught red handed while offering and delivering

bribe on behalf of respondent no. 1 at the residence of the

complainant. Thereafter on completion of the investigation

charge sheet was filed in the court of learned Special Judge

against both the respondents for the offences punishable

under Section 120B read with Section 12 of the Prevention

of Corruption Act, 1988 (hereinafter referred to as "the

Act").

5. The learned Special Judge having perused the

chargesheet and material on record came to the conclusion

that previous sanction as required under Section 19 of the

Act, was necessary to prosecute a Public Servant for the

offence punishable under Section 12 of the Act and

accordingly declined to take cognizance of the offence.

Being aggrieved by the order of the learned Special Judge,

the appellant filed the Criminal Revision Application No. 49

of 2006 before the High Court of Bombay at Goa. The High 5

Court dismissed the revision of the appellant and upheld the

discharge of the respondents for want of sanction under

Section 19 of the Act.

Hence this appeal.

6. We have heard the learned counsel for the parties and

perused the material available on record.

7. The short question that arises for our consideration in

this appeal is whether any previous sanction as such is

necessary for taking cognizance of an offence punishable

under Section 12 of the Act?

8. Shri H.P. Rawal, learned Additional Solicitor General

appearing on behalf of the appellant submitted that the

court is not precluded from taking cognizance of an offence

punishable under Section 12 of the Act against a public

servant inasmuch as the said provision does not provide for

any such previous sanction and the requirement of previous

sanction is only in respect of offences punishable under

Sections 7, 10, 11, 13 and 15 of the Act.

6

9. M/s. Krishnan Venugopal, learned senior counsel and

Santosh Kumar, learned counsel for the respondents

supported the reasoning and conclusion of the High Court

that previous sanction for taking cognizance against a public

servant would be equally necessary in respect of the offence

punishable under Section 12 of the Act also.

10. In order to appreciate the submissions that were made

before us it may be necessary to notice the relevant

provisions of the Act. Section 12 of the Act which provides

for punishment for abetment of offences defined in Section 7

or 11 reads as under:

"Section 12 - Punishment for abetment of offences defined in section 7 or 11. - Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

7 11. Section 19 of the Act which deals with previous

sanction for prosecution of an offence punishable under

Sections 7, 10, 11, 13 and 15 alleged to have been

committed by a public servant, reads as under:

"Section 19 - Previous sanction necessary for prosecution. -

(1) 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 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 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 any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State 8

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 (2 of 1974),

--

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal,

confirmation 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, omission 9

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.

12. In the instant case, we are not concerned with the

question as to whether the respondents have committed any

offence punishable under Section 120B of the Indian Penal

Code read with Section 12 of the Act. We have to proceed

on the basis of the allegations made by the appellant against

the respondents without going into the truth or otherwise of

the allegations so made in the charge sheet. The issue that

arises for consideration is whether the learned Special Judge

as well as the High Court have committed any error in

refusing to take cognizance of the offence punishable under 10 Section 12 of the Act alleged to have been committed by the

respondents on the ground that there has been no previous

sanction of the Government as required under Section 19 of

the Act?

13. The courts below relying upon the decision in Sharad

Waman Bushake Vs. State of Maharashtra1 were of the

view that Section 12 cannot be treated as being wholly

distinct or independent from Section 7 or 11 because it

speaks of abetment of those offences punishable under

Section 7 or 11 as the case may be. The view taken by the

High Court was that though an accused can be charged

independently under Section 12, the existence of an offence

under Section 12 is dependent upon Section 7 or 11.

Therefore, so long as a sanction is required for punishment

of the principal offence under Section 7 or 11 of the Act,

sanction would equally be necessary in regard to

punishment for abetment of those offences.

14. In our considered opinion, the interpretation sought to

be placed by the High Court on Section 19 of the Act is 1 [1993 Mah. L.J. 284] 11

wholly erroneous. The court at that stage cannot go into the

question whether there was any abetment of any offence

punishable under Section 7 or 11. Section 12 of the Act, in

clear and categorical terms, speaks that whoever abets any

offence punishable under Section 7 or 11 whether or not

that offence is committed in consequence of that abetment,

shall be punishable with imprisonment for a term as

provided thereunder. It is thus clear that abetment of any

offence punishable under Section 7 or 11 is itself a distinct

offence. The offence punishable under Section 7 or 11

whether actually committed by a public servant is of no

consequence. It is precisely for the said reason Section 19 of

the Act specifically omits Section 12 from its purview. The

courts by process of interpretation cannot read Section 12

into Section 19 as it may amount to rewriting the very

Section 19 itself. It is settled law that where there is no

ambiguity and the intention of the legislature is clearly

conveyed, there is no scope for the court to undertake any

exercise to read something into the provisions which the 12

legislature in its wisdom consciously omitted. Such an

exercise if undertaken by the courts may amount to

amending or altering the statutory provisions.

15. In a plethora of cases, it has been stated that where,

the language is clear, the intention of the legislature is to be

gathered from the language used. It is not the duty of the

court either to enlarge the scope of legislation or the

intention of the legislature, when the language of the

provision is plain. The court cannot rewrite the legislation

for the reason that it had no power to legislate. The court

cannot add words to a statute or read words into it which

are not there. The court cannot, on an assumption that

there is a defect or an omission in the words used by the

legislature, correct or make up assumed deficiency, when

the words are clear and unambiguous. Courts have to

decide what the law is and not what it should be. The courts

adopt a construction which will carry out the obvious

intention of the legislature but cannot set at naught

legislative judgment because such course would be 13

subversive of constitutional harmony [See: Union of India

& Anr. Vs. Deokinandan Aggarwal2].

16. In A.R. Antulay Vs. Ramdas Sriniwas Nayak3, it so

happened that a private complaint was made by the

respondent therein against the appellant after the requisite

sanction under Section 6 of Prevention of Corruption

Act,1947 was given by the Government. The Court of

Special Judge took cognizance of the alleged offences under

Section 8 (1) of the Criminal Law Amendment Act, 1952.

On behalf of the appellant an application was made in that

court questioning jurisdiction of that court inter alia on the

ground that it could not take cognizance of any of the

offences enumerated in Section 6 (1) (a) and (b) of the said

Act upon a private complaint of facts constituting the

offences. The courts below rejected the contention. This

Court observed: "It is well-established cannon of

construction that the court should read the section as it is

and cannot rewrite it to suit its convenience; nor does any 2 (1992) Supp. (1) SCC 323 3 (1984) 2 SCC 500 14

canon of construction permit the court to read the section in

such manner as to render it to some extent otiose." This

Court further observed: "Punishment of the offender in the

interest of the society being one of the objects behind penal

statutes enacted for larger good of the society, right to

initiate proceedings cannot be whittled down, circumscribed

or fettered by putting it into a strait-jacket formula of locus

standi. To hold that a specific statutory exception exists: the

court would require an unambiguous statutory provision and

the tangled web of argument for drawing a far fetched

implication cannot be a substitute for an express statutory

provision."

17. In State of Jharkhand & Anr. Vs. Govind Singh4

this Court once again reiterated that where the language is

clear, the intention of the legislature is to be gathered from

the language used and the attention should be paid to what

has been said as also to what has not been said. In that

case the Jharkhand High Court held that even though there 4 (2005) 10 SCC 437 15

is no specific provision in Section 52 (3) of the Indian Forest

Act, 1927 as amended by Bihar Act 9 of 1990, a vehicle

seized for alleged involvement in commission of forest

offence can be released on payment of fine in lieu of

confiscation. The High Court took the view that it would be

inequitable to direct confiscation and, therefore, it was held

that to meet the interest of justice the power to impose fine

in lieu of confiscation can be read into under Section 52(3)

of the Act. Accordingly, a fine was imposed and the seizing

authority was directed to release the vehicle on payment

thereof. This Court interfered with the judgment observing

that the view taken by the High Court was against the

settled principles relating to statutory interpretation. It was

observed:

"Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to 16

remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See: Frankfurter, "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p.51.)"

It was further observed:

"Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature."

17 18. Keeping in view of the aforesaid legal principles the

inevitable conclusion is that the High Court fell into error in

reading into Section 19 of the Act, the prohibition not to

take cognizance of an offence punishable even under Section

12 of the Act without previous sanction of the Government

which is not otherwise provided for. The language employed

in Section 19 of the Act is couched in mandatory form

directing the courts not to take cognizance of an offence

punishable under Sections 7, 10, 11, 13 and 15 only, alleged

to have been committed by a public servant, except with the

previous sanction of the Government. The legislature

consciously in its wisdom omitted the offence of abetment of

any offence punishable under Section 7 or 11 of the Act

thereby making its intention clear that no previous sanction

as such would be required in cases of offence punishable

under Section 12 of the Act. The High Court read something

into Section 19 on its own thereby including Section 12 also

into its ambit, which in our opinion is impermissible. 18

19. The judgment of the High Court is clearly erroneous,

deserves to be set aside which we direct.

20. The appeal is accordingly allowed.

..........................................J. ( R.V. Raveendran)

..........................................J. (B. Sudershan Reddy) New Delhi;

September 11, 2009.