Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.    1257         OF 2011 (Arising out of SLP (Crl.) No. 7384 of 2010)

Abhay Singh Chautala … Appellant Versus

C.B.I. … Respondent WITH

CRIMINAL APPEAL NO.    1258         OF 2011 (Arising out of SLP (Crl.) No. 7428 of 2010)

Ajay Singh Chautala … Appellant Versus

C.B.I. … Respondent J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of two Special Leave Petitions, they being SLP  

(Crl.) No. 7384 of 2010 and SLP (Crl.) No. 7428 of 2010.  While Abhay Singh  

Chautala is the petitioner in the first Special Leave Petition, the second one has  

been filed by Shri Ajay Singh Chautala.  The question involved is identical in both  

the SLPs and hence they are being disposed of by a common judgment.

2. Leave granted in both the Special Leave Petitions.

3. Whether the sanction under Section 19 of The Prevention of Corruption  

Act  (hereinafter  called  “the  Act”  for  short)  was  necessary  against  both  the  

appellants and, therefore, whether the trial which is in progress against both of  

them, a valid trial,  is common question.  This question was raised before the  

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Special Judge, CBI before whom the appellants are being tried for the offences  

under Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act read with  

Section 109 of Indian Penal Code in separate trials.

4. Separate  charge  sheets  were  filed  against  both  the  appellants  for  the  

aforementioned offences by the CBI.  It was alleged that both the accused while  

working  as  the  Members  of  Legislative  Assembly  had  accumulated  wealth  

disproportionate to their known sources of income.  The charges were filed on  

the basis of the investigations conducted by the CBI.  This was necessitated on  

account of this Court’s order in Writ Petition (Crl.) No.93 of 2003 directing the CBI  

to  investigate  the  JBT  Teachers  Recruitment  Scam.   The  offences  were  

registered on 24.5.2004.  The CBI conducted searches and seized incriminating  

documents which revealed that Shri Om Prakash Chautala and his family had  

acquired movable and immovable properties valued at Rs.1,467 crores.  On this  

basis a Notification came to be issued on 22.2.2006 under Sections 5 and 6 of  

the DSPE Act with the consent of the Government of Haryana extending powers  

and jurisdiction under the DSPE Act to the State of Haryana for investigation of  

allegations  regarding  accumulation  of  disproportionate  assets  by  Shri  Om  

Prakash Chautala and his family members under the Prevention of Corruption  

Act.  A regular First Information Report then came to be registered against Shri  

Om Prakash Chautala who is the father of both the appellants.  It is found that in  

the check period of 7.6.2000 to 8.3.2005, appellant Abhay Singh Chautala had  

amassed wealth  worth  Rs.1,19,69,82,619/-  which  was 522.79  % of  appellant  

Abhay Singh Chautala’s known sources of income.  During the check period, Shri  

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Abhay Singh Chautala was the Member of the Legislative Assembly Haryana,  

Rori Constituency.  Similarly, in case of Ajay Singh Chautala, his check period  

was taken as 24.5.1993 to 31.5.2006 during which he held the following offices:-

1. 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan

2. 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan

3. 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from  Bhiwani Constituency

4. 2.8.2004 to 03.11.09 Member of Parliament, Rajya Sabha

He was later on elected as MLA from Dabwali constituency, Haryana in  

November,  2009.   It  was  found  that  he  had  accumulated  wealth  worth  

Rs.27,74,74,260/- which was 339.26 % of his known sources of income.  It was  

on this basis that the charge sheet came to be filed.

5. Admittedly, there is no sanction to prosecute under Section 19 of the Act  

against both the appellants.  

6. An objection  regarding  the absence of  sanction  was raised before  the  

Special  Judge,  who  in  the  common  order  dated  2.2.2010,  held  that  the  

allegations in the charge sheet did not contain the allegation that the appellants  

had  abused  their  current  office  as  member  of  Legislative  Assembly  and,  

therefore, no sanction was necessary.

7. This order was challenged by way of a petition under Section 482 Cr.P.C.  

before the High Court.  The High Court dismissed the said petition by the order  

dated 8.7.2010.

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8. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit  

arguing for the appellants, urged that on the day when the charges were framed  

or  on  any  date  when  the  cognizance  was  taken,  both  the  appellants  were  

admittedly public servants and, therefore, under the plain language of Section 19  

(1) of the Act, the Court could not have taken cognizance unless there was a  

sanction.  The learned senior counsel analyzed the whole Section closely and  

urged that in the absence of a sanction, the cognizance of the offences under the  

Prevention of Corruption Act could not have been taken.  In this behalf, learned  

senior counsel further urged that the judgment of this Court in  Prakash Singh  

Badal v. State of Punjab [2007 (1) SCC 1] as also the relied on judgment in RS  

Nayak  v.  A  R.  Antulay  [1984  (2)  SCC 183] were  not  correct  and  required  

reconsideration and urged for a reference to a Larger Bench.   

9. Against these two judgments as also the judgments in Balakrishnan Ravi  

Menon v.  Union of  India  [2007  (1)  SCC 45],  K.  Karunakaran  v.  State  of   

Kerala [2007 (1) SCC 59]  and  Habibullah Khan v. State of Orissa & Anr.   

[1995 (2) SCC 437], this Court had clearly laid down the law and had held that  

where the public servant had abused the office which he held in the check period  

but  had  ceased  to  hold  “that  office”  or  was  holding  a  different  office  then  a  

sanction would not be necessary.  The learned Solicitor General appearing for  

the respondent urged that the law on the question of sanction was clear and the  

whole controversy was set at rest in  AR Antulay’s case (cited supra) which  

was  followed throughout  till  date.   The  Solicitor  General  urged  that  the  said  

position in law should not be disturbed in view of the principle of  staire decicis.  

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Extensive arguments were presented by both the parties requiring us now to  

consider the question.

Section 19 runs as under:-

“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  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-   

(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, irregularity in, the sanction required  

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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 inquiry, trial,  appeal or other proceedings.

 (4) In  determining  under  sub-section  (3)  whether  the  

absence of, or any error, omission 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.”

10. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing  

on behalf of the appellants, firstly pointed out that the plain meaning of Section  

19(1) of the Act is that when any public servant is tried for the offences under the  

Act, a sanction is a must.  The learned senior counsel were at pains to point out  

that in the absence of a sanction, no cognizance can be taken against the public  

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servant under Sections 7, 10, 11, 13 and 15 of the Act and thus, a sanction is a  

must.   The  learned  senior  counsel  relied  on  the  decision  in  Abdul  Wahab  

Ansari Vs. State of Bihar [2000 (8) SCC 500], more particularly, paragraph 7,  

as also the decision in Baij Nath Prasad Tripathi Vs. State of Bhopal [1957 (1)   

SCR 650].  The plain language of Section 19(1) cannot be disputed.  The learned  

senior counsel argued that Section 19(1) of the Act creates a complete embargo  

against taking cognizance of the offences mentioned in that Section against the  

accused who is a public servant.  The learned senior counsel also argued that it  

is only when the question arises as to which authority should grant a sanction  

that the sub-Section (2) will have to be taken recourse to.  However, where there  

is no duty of any such nature, the Court will be duty bound to ask for the sanction  

before it takes cognizance of the offences mentioned under this Section.  

11. As  against  this,  Shri  Gopal  Subramanium,  learned  Solicitor  General,  

pointed out the decision in  RS Nayak v. A R. Antulay (cited supra) and the  

subsequent decisions in  Balakrishnan Ravi Menon v. Union of India (cited  

supra), K. Karunakaran v. State of Kerala (cited supra), Habibullah Khan v.   

State of Orissa & Anr. (cited supra) and lastly, in  Prakash Singh Badal v.   

State of Punjab (cited supra).

12. Shri Mukul Rohtagi and Shri U.U. Lalit, learned senior counsel appearing  

on behalf of the appellants, have no quarrel with the proposition that in all the  

above cases, it is specifically held that where the alleged misconduct is in some  

different capacity than the one which is held at the time of taking cognizance,  

there will be no necessity to take the sanction.

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13. To get over this obvious difficulty, the learned senior counsel appearing on  

behalf of the appellants contended that the basic decision in RS Nayak v. A R.   

Antulay (cited supra) was not correctly decided, inasmuch as the decision did  

not consider the plain language of the Section which is clear and without any  

ambiguity.   The learned senior counsel contended that where the language is  

clear  and admits  of  no  ambiguity,  the Court  cannot  reject  the  plain  meaning  

emanating out of the provision.  Further, the learned senior counsel pointed out  

that even in the judgments following the judgment in RS Nayak v. A R. Antulay  

(cited supra) upto the judgment in the case of Prakash Singh Badal v. State of   

Punjab (cited  supra) and  even  thereafter,  the  learned  Judges  have  not  

considered the plain meaning and on that count, those judgments also do not  

present correct law and require reconsideration.  Another substantial challenge to  

the judgment in  RS Nayak v. A R. Antulay (cited supra) is on account of the  

fact that the law declared to the above effect in RS Nayak v. A R. Antulay (cited  

supra) was  obiter dictum,  inasmuch as it  was not necessary for the Court to  

decide the question, more particularly, decided by the Courts in paragraphs 23  

to 26.  The learned senior counsel pointed out that, firstly, the Court in RS Nayak  

v. A R. Antulay (cited supra), came to the conclusion that Shri Antulay who was  

a Member of the Legislative Assembly, was not a public servant.  It is contended  

that once that finding was arrived at, there was no question of further deciding as  

to whether, the accused being a public servant in a different capacity, the law  

required  that  there  had  to  be  a  sanction  before  the  Court  could  take  the  

cognizance.  Learned senior counsel further argued that where the Court makes  

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an observation which is either not necessary for the decision of the court or does  

not relate to the material facts in issue, such observation must be held as obiter   

dictum.  In support of this proposition, the learned senior counsel relied on the  

decision in Director of Settlement,  State of A.P. Vs. M.R. Apparao [2002 (4)   

SCC 638] (Paragraph 7), State of Haryana Vs. Ranbir @ Rana [2006 (5) SCC  

167], Division Controller, KSRTC Vs. Mahadeva Shetty & Anr. [2003(7) SCC  

197] (Paragraph 23), H.H. Maharajadhiraja Mahdav Rao Jiwaji Rao Scindia   

Bahadur Vs. Union of India [AIR 1971 SC 530] (Paragraph 325 onwards),   

State of Orissa Vs. Sudhansu Sekhar Misra [AIR 1968 SC 647] [in which the  

celebrated decision in Quinn Vs. Leathem 1901 AC 495] was relied on and ADM  

Jabalpur etc. Vs. Shivkant Shukla [1976 (2) SCC 521] etc.  The learned senior  

counsel also argued that the whole class of public servant would be deprived of  

the protection  if  the decision in  RS Nayak v.  A R. Antulay (cited supra) is  

followed.  For this purpose,  learned  senior  counsel  argued that  in such case,  

public servants would be exposed to frivolous prosecutions which would have  

disastrous  effects  on  their  service  careers,  though  they  are  required  to  be  

insulated against such false, frivolous and motivated complaints of wrong doing.  

It is then argued that the decision in K. Veeraswami Vs. Union of India [1991  

(3)  SCC 655] has in fact  removed the very foundation of  the decision in  RS  

Nayak v.  A.  R.  Antulay  (cited supra) in  respect  of  the sanction.   It  is  also  

argued that, in effect, the decision in RS Nayak v. A R. Antulay (cited supra)  

has added further proviso to the effect “provided that nothing in this sub-Section  

shall  apply  to  a  case where at  the time of  cognizance,  the public  servant  is   

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holding a different post with a different removing authority from the one in which  

the  offence  is  alleged  to  have  been  committed”.   It  is  argued  that  such  an  

addition would be clearly impermissible as it would negate the very foundation of  

criminal law which requires a strict interpretation in favour of the accused and not  

an interpretation which results into deprivation of the accused of his statutory  

rights.  The decision in S.A. Venkataraman Vs. State [AIR 1958 SC 107] is also  

very heavily relied upon, more particularly, the observations in paragraphs 14  

and 16 thereof.   

14. It will be, therefore, our task to see as to whether the judgment in  A. R.  

Antulay’s  case  (cited  supra) and  the  law  decided  therein,  particularly  in  

paragraphs 24, 25 and 26 is obiter.  Paragraphs 24, 25 and 26 are as under:

“24. Now if the public servant holds two offices and he is  accused of having abused one and from which he is  removed  but  continues  to  hold  the  other  which  is  neither alleged to have been used nor abused, is a  sanction  of  the  authority  competent  to  remove  him  from the office which is neither alleged or shown to  have  been  abused  or  misused  necessary?  The  submission  is  that  if  the  harassment  of  the  public  servant by a frivolous prosecution and criminal waste  of  his  time  in  law  courts  keeping  him  away  from  discharging  public  duty,  are  the  objects  underlying  Section 6, the same would be defeated if it is held that  the sanction of the latter authority is not necessary.  The submission does not commend to use. We fail to  see how the competent authority entitled to remove  the  public  servant  from  an  office  which  is  neither  alleged to have been used or abused would be able  to  decide  whether  the  prosecution  is  frivolous  or  tendentious. An illustration was posed to the learned  Counsel that a Minister who is indisputably a public  servant  greased his palms by abusing his  office as  Minister, and then ceased to hold the office before the  court  was  called  upon  to  take  cognizance  of  the  offence  against  him  and  therefore,  sanction  as  

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contemplated by Section 6 would not be necessary;  but if after committing the offence and before the date  of taking of cognizance of the offence, he was elected  as a Municipal President in which capacity he was a  public servant under the relevant Municipal law, and  was  holding  that  office  on  the  date  on  which  court  proceeded  to  take  cognizance  of  the  offence  committed by him as a Minister, would a sanction be  necessary and that too of that authority competent to  remove him from the office of the Municipal President.  The  answer  was-  in  affirmative.  But  the  very  illustration would show that such cannot be the law.  Such an interpretation of Section 6 would render it as  a shield to an unscrupulous public servant. Someone  interested in protecting may shift him from one office  of  public  servant  to another  and thereby defeat  the  process  of  law.  Ode  can  legitimately  envisage  a  situation wherein a person may hold a dozen different  offices,  each  one  clothing  him with  the  status  of  a  public  servant  under Section  21 IPC and even if  he  has abused only one office for which either there is a  valid sanction to prosecute him or he has ceased to  hold that office by the time court was called upon to  take cognizance, yet on this assumption, sanction of  11 different competent authorities each of which was  entitled to remove him from 11 different public offices  would  be  necessary  before  the  court  can  take  cognizance of the offence committed by such public  servant/while abusing one office which he may have  ceased to hold. Such an interpretation in contrary to  all canons of construction and leads to an absurd and  product  which  of  necessity  must  be  avoided.  Legislation must at all costs be interpreted in such a  way that it would not operate as a rougue's charter.  (See Davis & Sons Ltd. v. Atkins [1977] ICR 662

25. Support was sought to be drawn for the submission  from the decision of the Andhra Pradesh High Court  in Air Commodore Kailash Chand v. The State (S.P.E.  Hyderabad) (1973) 2 AWR 263 and the affirmance of  that  decision  by  this  Court  in  The  State  (S.P.E.  Hyderabad)  v.  Air  Commodore  Kailash  Chand  :  1980CriLJ393 . In that case accused Kailash Chand  was, a member of the Indian Air Force having entered  the service on 17th November 1941. He retired from  the service on 15th June , 1965, but was re-employed  

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for  a  period  of  2  years  with  effect  from 16th June,  1965. On 7th September, 1966, the respondent was  transferred  to  the  Regular  Air  Force  Reserve  with  effect from June 16, 1965 to June 15, 1970 i.e. for a  period  of  5  years.  On  13th  March,  1968,  the  re- employment given to the respondent ceased and his  service was terminated with effect from April 1, 1968.  A charge-sheet was submitted against him for having  committed  an  offence  under  Section  5(2)  of  the  Prevention of Corruption Act, 1947 during the period  March 29, 1965 to March 16, 1967. A contention was  raised on behalf of the accused that the court could  not take cognizance of the offence in the absence of a  valid sanction of the authority competent to remove  him from the office held by him as a public servant.  The learned special Judge negatived the contention.  In the revision petition filed by the accused in the High  Court, the learned Single Judge held that on the date  of taking cognizance of the offence, the accused was  a member of the Regular Air Force Reserve set up  under the Reserve and Auxiliary Air Force, 1952 and  the rules made there under. Accordingly, it was held  that a sanction to prosecute him was necessary and  in  the  absence  of  which  the  court  could  not  the  cognizance of the offences and the prosecution was  quashed.  In  the  appeal  by  certificate,  this  Court  upheld the decision of the High Court. This Court held  following the  decision  in  S.A.  Venkataraman's  case  that if  the public servant had ceased to be a public  servant  at  the  time  of  taking  cognizance  of  the  offence,  Section  6  is  not  attracted.  Thereafter  the  court proceeded to examine whether the accused was  a  public  servant  on  the  date  when  the  court  took  cognizance of  the offence and concluded that  once  the  accused  was  transferred  to  the  Auxiliary  Air  Force, he retained his character as a public servant  because he was required to undergo training and to  be called up for service as and when required. The  court  further  held  that  as  such  the  accused  was  a  public servant as an active member of the Indian Air  Force and a sanction to prosecute him under Section  6 was necessary. This decision is of no assistance for  the  obvious  reason  that  nowhere  it  was  contended  before  the  court,  which  office  was  alleged  to  have  been abused  by the  accused  and whether  the  two  offices were separate and distinct. It is not made clear  

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whether  the  accused  continued  to  hold  the  office  which was alleged to have been abused or misused  even at the time of taking cognizance of the offence.  But that could not be so because the service of the  accused was terminated on April  1,  1968 while the  cognizance was sought  to  be  taken in  June,  1969.  Indisputably,  the  accused  had  ceased  to  hold  that  office as public servant which he was alleged to have  misused  or  abused.  The  court  was  however,  not  invited to consider  the contention canvassed before  us:  Nor was the court  informed specifically whether  the  subsequent  office  held  by  the  accused  in  that  case  was  the  same  from  which  his  service  was  terminated meaning thereby he was re-employed to  the same office. The decision appears to proceed on  the facts of the case. We would however, like to make  it abundantly clear that if the two decisions purport to  lay down that even if a public servant has ceased to  hold that office as public servant which he is alleged  to have abused or misused for corrupt motives, but on  the date of taking cognizance of an offence alleged to  have  been  committed  by  him  as  a  public  servant  which he ceased to be and holds an entirely different  public  office  which  he  is  neither  alleged  to  have  misused  or  abused  for  corrupt  motives,  yet  the  sanction of authority competent to remove him from  such latter  office would  be necessary  before  taking  cognizance  of  the  offence  alleged  to  have  been  committed  by  the  public  servant  while  holding  an  office which he is alleged to have abused or misused  and which he has ceased to hold, the decisions in our  opinion, do not lay down the correct law and cannot  be  accepted  as  making  a  correct  interpretation  of  Section 6.

26. Therefore, upon a true construction of Section 6, it is  implicit  therein  that  Sanction  of  that  competent  authority  alone  would  be  necessary  which  is  competent  to  remove  the  public  servant  from  the  office which he is alleged to have misused or abused  for  corrupt  motive  and  for  which  a  prosecution  is  intended to be launched against him."

15. It  is  clear  from  these  paragraphs  that  the  law  laid  down  in  Air  

Commodore Kailash Chand v. The State (S.P.E. Hyderabad) [(1973) 2 AWR  

1

263] was  taken  into  consideration.   The  Court  has  also  quoted  S.A.  

Venkataraman’s case (cited supra) and the decision in Kailash Chand’s case  

(cited supra) was distinguished by holding thus:

“This decision is of no assistance for the obvious reason that  nowhere it was contended before the court, which office was  alleged to have been abused by the accused and whether  the two offices were separate  and distinct.  It  is  not  made  clear whether the accused continued to hold the office which  was alleged to have been abused or misused even at the  time of taking cognizance of the offence. But that could not  be so because the service of the accused was terminated on  April 1, 1968 while the cognizance was sought to be taken in  June, 1969. Indisputably, the accused had ceased to hold  that office as public servant which he was alleged to have  misused or abused. The court was however, not invited to  consider the contention canvassed before us: Nor was the  court  informed  specifically  whether  the  subsequent  office  held by the accused in that case was the same from which  his  service  was  terminated  meaning  thereby  he  was  re- employed  to  the  same  office.  The  decision  appears  to  proceed on the facts of the case.”

16. The propositions argued by the learned Solicitor General have, therefore,  

been totally accepted.  However, that does not solve the question.  The question  

is whether these propositions amount to obiter.  The learned senior counsel for  

the appellants insists that it was not at all necessary for the Court to make these  

observations as the Court had answered the question whether A.R. Antulay in his  

capacity  as  an  MLA,  was  a  public  servant,  in  negative.   The learned senior  

counsel argued that once it was found that Antulay in his capacity as an MLA,  

was not a public servant, it was not at all necessary for the Court to go further  

and probe a further question as to whether a public servant who has abused a  

particular office ceased to hold that office and held some other office on the date  

1

Therefore, it will be clear that the complainant’s main argument was the  

abuse of the office of Chief Minister which the accused ceased to hold and hence  

no sanction was necessary.  In that the complainant proceeded on the premise  

that the accused as the MLA was a public servant.

17. In paragraph 16 the contention of the accused is noted which suggests  

that he was a public servant within the contemplation of clauses (3) and (7) of  

Section 21 of IPC as also under section 21 (12) (a).  In fact it was the argument  

of accused by way of the next claim that if the accused holds plurality of offices  

each of which confers the status of a public servant and even if it is alleged that  

he has abused or misused one office as a public servant notwithstanding the fact  

that there was no allegation of the abuse or misuse of other office held as public  

servant, the sanction of each authority competent to remove him from each of the  

offices would be a sine qua non under Section 6 before a valid prosecution can  

be launched against the accused.  Therefore, the question of accused being a  

public  servant  was  inextricably  mixed  with  the  question  of  the  office  which  

accused was alleged to have misused.  There was no dichotomy between the  

two questions.  Strangely enough, the accused claimed to be a public servant,  

unlike the present case and it was on that premise that the accused had raised a  

question  that  there  would  have  to  be  the  sanction  qua  each  office  that  he  

continued to hold on the date when the cognizance was taken.  In the present  

case, it is not disputed that the accused was a public servant.  Undoubtedly they  

were public servants.  By the subsequent judgment in  P.V. Narsimha Rao Vs.  

State [1998 (4)  SCC 626] it  has been clearly held now that  the Members of  

1

18. It will be seen from the nature of the questions that the whole controversy  

was covered by those questions particularly, the question raised in (b), (c), (d)  

and (e) were nothing but the result of the contentions raised by the parties which  

directly fell for consideration.

19. The Court answered the first question that the relevant date of sanction  

would be the date on which the cognizance was taken of the offence.  Since in  

paragraph 23 to 26 the Court found that the accused in that case did not continue  

to hold the office that he had allegedly abused on the date of cognizance, there  

was no necessity of granting any sanction.  The Court held so in paragraph 27 in  

the most unequivocal terms.  The Court goes on to record “therefore, it is crystal   

clear  that  the  complaint  filed  against  the  accused  charged  him with  criminal   

abuse or misuse of only his office as Chief Minister. By the time, the court was  

called upon to take cognizance of the offences, so alleged in the complaint, the  

accused had ceased to hold the office of the Chief Minister. On this short ground,   

it can be held that no sanction to prosecute him was necessary as former Chief   

Minister of Maharashtra State.  The appeal can succeed on this short ground.”   

(Emphasis supplied).

20. However,  subsequently,  the  question  whether  an  MLA  was  a  public  

servant was also canvassed at length.  The Court then went on to examine the  

question in further paragraphs and came to the conclusion that MLA was not a  

public servant which law was, of course thereafter,  upset in  Narsimha Rao’s  

case (cited supra).  It cannot be said that the question decided by the Court  

regarding the abuse of  a particular  office and the effects of  the accused not  

1

continuing with that office or holding an altogether different office was obiter.  In  

fact  it  is  on  that  very  basis  that  the  judgment  of  A.R.Antulay (cited supra)  

proceeded.  The question of MLA not being a public servant was decided as a  

subsidiary question.

21. This  finding  of  ours  is  buttressed  by  the  decision  reported  in  

Balakrishnan  Ravi  Menon  v.  Union  of  India  (cited  supra) which  decision  

came almost immediately after Prakash Singh Badal v. State of Punjab (cited  

supra) case.   Whether  the finding  given in  the  judgment  of  Antulay’s  case  

(cited supra) was obiter was the question that directly fell for consideration in  

that case.  This Court quoted paragraph 24 of the judgment in Antulay’s case  

(cited supra) so also some portion of paragraph 25.  It is on the basis of these  

two paragraphs  that  the  Court  unequivocally  rejected  the  contention  that  the  

finding given in  Antulay’s case (cited supra) regarding the abuse of office of  

Chief Minister was obiter.  Therefore, it would not be possible for us to hold that  

the finding given in Antualy’s case (cited supra) was an obiter.  We must point  

out at this juncture that in Antulay’s case (cited supra) the Court first went on to  

decide the basic question that if the accused did not continue with the office that  

he had allegedly abused on the day cognizance was taken, then there was no  

requirement of sanction.   

22. This finding was given as the complainant in that case had canvassed in  

the backdrop of the judgment of the trial Court discharging the accused holding  

him to be a public servant.  The trial Court had held that in the absence of such  

sanction, the accused was entitled to be discharged.  The complainant filed a writ  

1

petition against this order.  This court had permitted to file a criminal revision  

against the order of learned Special Judge perhaps being of the opinion that the  

writ petition did not lie and ultimately this Court transferred the criminal revision  

against  the  trial  Court’s  judgment  here.   The  complainant,  therefore,  had  

specifically and basically raised the point that since the accused had ceased to  

hold the office of Chief Minister on the date of cognizance, there was no question  

of any sanction and that was the main issue which was decided in  Antulay’s  

case (cited supra) as the basic issue by way of question No.(b)

23. We, therefore,  do not  think the finding given in  Antulay’s case (cited  

supra) was in any manner obiter and requires reconsideration.  Learned Senior  

Counsel relied on the decision in  Marta Silva & Ors. Vs. Piedade Cardazo &  

Ors. [AIR 1969 Goa 94], State of A.P. Vs. M.R. Apparao (cited supra], State   

of Haryana Vs. Ranbir alias Rana (cited supra], Division Controller, KSRTC  

Vs.  Mahadeva Shetty  & Anr.  (cited supra),  H.H.  Maharajadhiraja  Madhav  

Rao Jiwaji Rao Scindia Bahadur Vs. Union of India (cited supra), State of  

Orissa Vs. Sudhansu Sekhar Misra (cited supra)  and lastly  ADM, Jabalpur  

etc. Vs. Shivkant Shukla (cited supra] and contended that the principles of  

obiter  dicta in  the  aforementioned  decisions  would  apply  to  Antulay’s  case  

(cited supra)  also.  We have already shown that the principles regarding the  

abuse of a particular office, decided in Antulay’s case (cited supra), could not  

be termed as  Obiter dicta.  We have nothing to say about the principles in the  

aforementioned  decisions.   However,  in  the  circumstances,  which  we  have  

shown above,  all  these  cases  would  be  of  no  help  to  the  appellants  herein,  

2

particularly  in  the  light  of  our  conclusion  that  the  principles  arrived  at  in  

Antulay’s  case  (cited  supra) could  not  be  termed  as  obiter  dicta.   We,  

therefore, reject the argument on that count.

24. There is one more reason, though not a major one, for not disturbing the  

law settled in Antulay’s case (cited supra).  That decision has stood the test of  

time for last over 25 years and it is trite that going as per the maxim stare decisis  

et non quieta movere,  it  would be better to stand by that decision and not to  

disturb what is settled.  This rule of interpretation was approved of by Lord Coke  

who suggested – “those things which have been so often adjudged ought to rest   

in peace”.  This Court in Shanker Raju Vs. Union of India [2011 (2) SCC 132],  

confirmed this view while relying on the decision in  Tiverton Estates Ltd. Vs.  

Wearwell Ltd. [1974 (1) WLR 176] and more particularly, the observations of  

Scarman, L.J.,  while not agreeing with the view of  Lord Denning,  M.R. about  

desirability  of  not  accepting  previous decisions.   The observations are to  the  

following effect:-

“….. I decline to accept his lead only because I think it damaging to  the law to the long term – though it would undoubtedly do justice in  the  present  case.   To  some  it  will  appear  that  justice  is  being  denied by a timid,  conservative  adherence to  judicial  precedent.  They would be wrong.  Consistency is necessary to certainty – one  of the great objectives of law.”

The Court also referred to the following other cases:-

Waman Rao Vs. Union of India [1981 (2) SCC 362], Manganese   

Ore  (India)  Ltd.  Vs.  CST  [1976  (4)  SCC  124],  Ganga  Sugar   

Corpn. Vs. State of U.P. [1980 (1) SCC 223], Union of India Vs.   

2

Raguhbir Singh [1989 (2) SCC 754], Krishena Kumar Vs. Union  

of India [1990 (4) SCC 207], Union of India Vs. Paras Laminates   

(P) Ltd. [1990(4) SCC 453]  and lastly,  Hari Singh Vs. State of   

Haryana [1993 (3) SCC 114].

We respectfully agree with the law laid down in Shanker Raju Vs. Union  

of India (cited supra) and acting on that  decision, desist  from disturbing the  

settled law in Antulay’s case (cited supra).  We have in the earlier part of the  

judgment, pointed out as to how the decision in  Antulay’s case (cited supra)  

has been followed right up to the decision in Prakash Singh Badal v. State of   

Punjab (cited supra) and even thereafter.

25. This leaves us with the other contention raised by learned Senior Counsel  

Shri Mukul Rohtagi as well as Shri U.U. Lalit  arguing for the appellants.  The  

learned senior  counsel  contended that  the decision in  Antulay’s case (cited  

supra) is hit by the doctrine of per incuriam.  The learned senior counsel heavily  

relied on the decision in Punjab Land Development Reclamation Corporation  

Ltd. Vs. Presiding Officer [1990 (3) SCC 682] and Nirmal Jeet Kaur Vs. State  

of M.P. [2004 (7) SCC 558] to explain the doctrine of  per incuriam.  We have  

absolutely no quarrel with the principles laid down in those two cases.  However,  

we feel that the resultant argument on the part of the learned senior counsel is  

not correct.  In support of their argument, the learned senior counsel contended  

that  in  Antulay’s  case  (cited  supra),  Section  6(2)  of  the  Act,  as  it  therein  

existed,  was ignored.   In  short,  the argument  was that  Section 6(2)  which is  

parimateria with Section 19(2) of the Act provides that in case of doubt as to  

2

which authority should give the sanction, the time when the offence is alleged to  

have been committed is relevant.  The argument further goes on to suggest that  

if that is so, then the Act expressly contemplates that a public servant may be  

holding office in a different capacity from the one that he was holding when the  

offence is alleged to have been committed at the time when cognizance is taken  

so as to  cause doubt  about  the sanctioning authority.   Thus,  there would be  

necessity of a sanction on the date of cognizance and, therefore, in ignoring this  

aspect, the decision in  Antulay’s case (cited supra) has suffered an illegality.  

Same is the argument in the present case.

26. This argument is basically incorrect.  In Antulay’s case (cited supra), it is  

not  as if  Section  6(2)  of  the Act  as  it  then existed,  was ignored or  was not  

referred to, but the Constitution Bench had very specifically made a reference to  

and had interpreted Section 6 as a whole.  Therefore, it cannot be said that the  

Constitution  Bench had totally  ignored  the  provisions  of  Section  6  and more  

particularly, Section 6(2).  Once the Court had held that if the public servant had  

abused a particular office and was not holding that office on the date of taking  

cognizance, there would be no necessity to obtain sanction.  It was obvious that  

it was not necessary for the Court to go up to Section 6(2) as in that case, there  

would be no question of doubt about the sanctioning authority.  In our opinion  

also,  Section 6(2)  of  the Act,  which is parimateria to Section 19(2),  does not  

contemplate a situation as is tried to be argued by the learned senior counsel.  

We do not agree with the proposition that the Act expressly contemplates that  

a public servant may be holding office in a different capacity from the one  

2

that he was holding when the offence is alleged to have been committed at  

the time when cognizance is taken.  That is not, in our opinion, the eventuality  

contemplated in Section 6(2) or Section 19(2), as the case may be.  In Antulay’s  

case (cited supra), the Court went on to hold that where a public servant holds a  

different capacity altogether from the one which he is alleged to have abused,  

there would  be no necessity  of  sanction  at  all.   This  view was taken on the  

specific  interpretation  of  Section  6  generally  and  more  particularly,  Section  

6(1)(c), which is parimateria to Section 19(1)(c) of the Act.  Once it was held that  

there was no necessity of sanction at all, there would be no question of there  

being any doubt arising about the sanctioning authority.  The doubt expressed in  

Section 19(2), in our opinion, is not a pointer to suggest that a public servant may  

have  abused  any  particular  office,  but  when  he  occupies  any  other  office  

subsequently, then the sanction is a must.  That will be the incorrect reading of  

the  Section.   The  Section  simply  contemplates  a  situation  where  there  is  a  

genuine  doubt  as  to  whether  sanctioning  authority  should  be  the  Central  

Government or the State Government or any authority competent to remove him.  

The words in Section 19(2) are to be read in conjunction with Sections 19(1)(a),  

19(1)(b) and 19(1)(c).  These clauses only fix the sanctioning authority to be the  

authority  which  is  capable  of  “removing a  public  servant”.   Therefore,  in  our  

opinion, the argument based on the language of Section 6(2) or as the case may  

be, Section 19(2), is not correct.  This eventuality has been considered, though  

not directly, in paragraph 24 in the judgment in Antulay’s case (cited supra), in  

the following manner:-

2

would have to be interpreted in a rational manner.  Once the interpretation is that  

the  prosecution  of  a  public  servant  holding a different  capacity  than the one  

which he is alleged to have abused, there is no question of going to Section 6(2)  

/ 19(2) at all in which case there will be no question of any doubt.  It will be seen  

that this interpretation of Section 6(1) or, as the case may be, Section 19(1), is on  

the basis of the expression “office” in three sub-clauses of Section 6(1), or the  

case  may  be,  Section  19(1).   For  all  these  reasons,  therefore,  we  are  not  

persuaded  to  accept  the  contention  that  Antulay’s  case  (cited  supra) was  

decided  per  incuriam of  Section  6(2).   In  our  opinion,  the  decision  in  K.  

Veeraswami Vs. Union of India (cited supra) or,  as the case may be,  P.V.  

Narsimha Rao’s case (cited supra)  are not apposite nor do they support the  

contention  raised  by  the  learned  senior  counsel  as  regards  Antulay’s  case  

(cited supra) being per incuriam of Section 6(2).

28. The learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit  

arguing  for  the  appellants,  in  support  of  their  argument  that  Antulay’s  case  

(cited supra) require reconsideration, urged that that interpretation deprives the  

entire class of public servants covered by the clear words of Section 6(1)/19(1) of  

a valuable protection.  It was further urged that such interpretation would have a  

disastrous effect on the careers of the public servants and the object of law to  

insulate  a  public  servant  from  false,  frivolous,  malicious  and  motivated  

complaints  of  wrong doing  would  be  defeated.   It  was  also  urged  that  such  

interpretation would amount to re-writing of  Section 19(1) and as if  a proviso  

would be added to Section 19(1) to the following effect:-

2

“Provided  that  nothing  in  this  sub-Section  shall  apply  to  a  case  where at the time of  cognizance,  the public  servant  is  holding a  different post  with a different removing authority from the one in  which the offence is alleged to have been committed.

Lastly,  it  was urged that  such an interpretation  would  negate  the  very  

foundation of criminal law, which requires a strict interpretation in favour of the  

accused.  Most of these questions are already answered, firstly,  in  Antulay’s  

case (cited supra) and secondly, in Prakash Singh Badal v. State of Punjab  

(cited supra).  Therefore, we need not dilate on them.  We specifically reject  

these arguments on the basis of Antulay’s case (cited supra) itself which has  

been relied upon in  Prakash Singh Badal v. State of Punjab (cited supra).  

The argument regarding the addition of the proviso must also fall as the language  

of  the suggested proviso contemplates a different  “post”  and not  the “office”,  

which  are  entirely  different  concepts.   That  is  apart  from  the  fact  that  the  

interpretation regarding the abuse of a particular office and there being a direct  

relationship between a public  servant  and the office that  he has abused, has  

already been approved of in Antulay’s case (cited supra) and the other cases  

following Antulay’s case (cited supra) including Prakash Singh Badal v. State  

of Punjab (cited supra).  We, therefore, reject all these arguments.

29. It was also urged that a literal interpretation is a must, particularly, to sub-

Section (1) of Section 19.  That argument also must fall as sub-Section (1) of  

Section 19 has to be read with in tune with and in light of sub-Sections (a), (b)  

and (c) thereof.  We, therefore, reject the theory of litera regis while interpreting  

Section 19(1).  On the same lines, we reject the argument based on the word “is”  

in sub-Sections (a), (b) and (c).  It is true that the Section operates in praesenti;  

2

however,  the  Section  contemplates  a  person  who  continues  to  be  a  public  

servant on the date of taking cognizance.  However, as per the interpretation, it  

excludes a person who has abused some other office than the one which he is  

holding on the date of taking cognizance, by necessary implication.  Once that is  

clear, the necessity of the literal interpretation would not be there in the present  

case.  Therefore, while we agree with the principles laid down in Robert Wigram  

Crawford Vs. Richard Spooner [4 MIA 179], Re Bedia Vs. Genreal Accident,   

Fir and Life Assurance Corporation Ltd. [1948 (2) All ER 995] and  Bourne  

(Inspector of Taxes) Vs. Norwich Crematorium Ltd. [1967 (2) All ER 576], we  

specifically hold that giving the literal interpretation to the Section would lead to  

absurdity  and  some  unwanted  results,  as  had  already  been  pointed  out  in  

Antulay’s  case  (cited  supra) (see  the  emphasis  supplied  to  para  24  of  

Antulay’s judgment).

30. Another  novel  argument  was  advanced  basing  on  the  language  of  

Sections 19(1) and (2).  It was pointed out that two different terms were used in  

the  whole  Section,  one  term  being  “public  servant”  and  the  other  being  “a  

person”.  It was, therefore, urged that since the two different terms were used by  

the Legislature, they could not connote the same meaning and they had to be  

read differently.   The precise  argument  was that  the  term “public  servant”  in  

relation to the commission of an offence connotes the time period of the past  

whereas the term “a person” in relation to the sanction connotes the time period  

of  the  present.   Therefore,  it  was  urged  that  since  the  two  terms  are  not  

synonymous  and  convey  different  meanings  in  respect  of  time/status  of  the  

2

office,  the  term “public  servant”  should  mean the  “past  office”  while  “person”  

should mean the “present status/present office”.   While we do agree that  the  

different terms used in one provision would have to be given different meaning,  

we do not accept the argument that by accepting the interpretation of Section  

19(1) in Antulay’s case, the two terms referred to above get the same meaning.  

We also do not see how this argument helps the present accused.  The term  

“public servant” is used in Section 19(1) as Sections 7, 10, 1 and 13 which are  

essentially the offences to be committed by public servants only.  Section 15 is  

the attempt by a public servant to commit offence referred to in Section 13(1)(c)  

or 13(1)(d).  Section 19(1) speaks about the cognizance of an offence committed  

by a public servant.  It is not a cognizance of the public servant.  The Court takes  

cognizance of the offence, and not the accused, meaning, the Court decides to  

consider the fact of somebody having committed that offence.  In case of this Act,  

such accused is only a public servant.  Then comes the next stage that such  

cognizance cannot  be taken unless  there  is  a  previous  sanction  given.   The  

sanction is in respect of the accused who essentially is a public servant.  The use  

of the term “a person” in sub-Sections (a), (b) and (c) only denotes an “accused”.  

An “accused” means who is employed either with the State Government or with  

the Central Government or in case of any other person, who is a public servant  

but not employed with either the State Government or the Central Government.  

It is only “a person” who is employed or it is only “a person” who is prosecuted.  

His capacity as a “public servant” may be different but he is essentially “a person”  

– an accused person, because the Section operates essentially qua an accused  

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person.  It is not a “public servant” who is employed; it is essentially “a person”  

and after being employed, he becomes a “public servant” because of his position.  

It is, therefore, that the term “a person” is used in clauses (a), (b) and (c).  The  

key words in these three clauses are “not removable from his office save by or   

with the sanction of ….”.  It will be again seen that the offences under Sections 7,  

10,  11  and  13  are  essentially  committed  by  those  persons  who  are  “public  

servants”.  Again, when it comes to the removal, it is not a removal of his role as  

a “public servant”, it is removal of “a person” himself who is acting as a “public  

servant”.  Once the Section is read in this manner, then there is no question of  

assigning the same meaning to two different terms in the Section.  We reject this  

argument.

31. Another novel argument was raised on the basis of the definition of “public  

servant”  as  given  in  Section  2(c)  of  the  Act.   The  argument  is  based  more  

particularly on clause 2(c)(vi) which provides that an arbitrator, on account of his  

position as such, is  public servant.   The argument is that  some persons, as  

contemplated in Sections 2(c)(vii), (viii), (ix) and (x), may adorn the character of a  

public servant only for a limited time and if after renouncing that character of a  

public servant on account of lapse of time or non-continuation of their office they  

are to be tried for the abuse on their part of the offices that they held, then it  

would  be  a  very  hazardous  situation.   We  do  not  think  so.   If  the  person  

concerned at the time when he is to be tried is not a public servant, then there  

will be no necessity of a sanction at all.  Section 19(1) is very clear on that issue.  

We do not see how it will cause any hazardous situation.  Similarly, it is tried to  

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be  argued  that  a  Vice-Chancellor  who  is  a  public  servant  and  is  given  a  

temporary  assignment  of  checking  the  papers  or  conducting  examination  or  

being invigilator by virtue of which he is a public servant in an entirely different  

capacity as from that of a Professor or a Vice-Chancellor, commits an offence in  

the temporary capacity, then he would not be entitled to the protection and that  

will  be causing violence to such public servant and, therefore, such could not  

have been the intention of the Legislature.  We feel that the example is wholly  

irrelevant in the light of the clearest possible dictum in  Antulay’s case (cited  

supra) and in  Prakash Singh Badal v. State of Punjab (cited supra).  If the  

concerned person continues to be a Vice-Chancellor and if he has abused his  

office as Vice-Chancellor, there would be no doubt that his prosecution would  

require a sanction.  So, it will be a question of examining as to whether such  

person has abused his position as a Vice-Chancellor and whether he continues  

to be a Vice-Chancellor on the date of taking of the cognizance.  If, however, he  

has not abused his position as Vice-Chancellor but has committed some other  

offence which could be covered by the sub-Sections of Section 19, then there  

would be no necessity of any sanction.

32. Same argument was tried to be raised on the question of plurality of the  

offices held by the public servant and the doubt arising as to who would be the  

sanctioning authority in such case.  In the earlier part of the judgment, we have  

already explained the concept of doubt which is contemplated in the Act, more  

particularly in Section 19(2).  The law is very clear in that respect.  The concept  

of ‘doubt’ or ‘plurality of office’ cannot be used to arrive at a conclusion that on  

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that basis, the interpretation of Section 19(1) would be different from that given in  

Antulay’s  case (cited supra) or  Prakash Singh Badal  v.  State  of  Punjab  

(cited supra).  We have already explained the situation that merely because a  

concept of doubt is contemplated in Section 19(2), it cannot mean that the public  

servant who has abused some other office than the one he is holding could not  

be tried without a sanction.  The learned senior counsel tried to support their  

argument on the basis of the theory of “legal fiction”.  We do not see as to how  

the theory of “legal fiction” can work in this case.  It may be that the appellants in  

this case held more than one offices during the check period which they are  

alleged to have abused; however, there will be no question of any doubt if on the  

date when the cognizance is taken,  they are not  continuing to hold that very  

office.   The  relevant  time,  as  held  in  S.A.  Venkataraman  Vs.  State  (cited  

supra),  is  the  date  on  which  the  cognizance  is  taken.   If  on  that  date,  the  

appellant is not a public servant, there will be no question of any sanction.  If he  

continues to be a public servant but in a different capacity or holding a different  

office than the one which is alleged to have been abused, still there will be no  

question of sanction and in that case, there will also be no question of any doubt  

arising because the doubt can arise only when the sanction is necessary.  In  

case of the present appellants, there was no question of there being any doubt  

because basically there was no question of the appellants’ getting any protection  

by a sanction.

33. We  do  not,  therefore,  agree  with  learned  Senior  Counsel  Shri  Mukul  

Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in  

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Antulay’s  case  (cited  supra) and  the  subsequent  decisions  require  any  

reconsideration for the reasons argued before us.  Even on merits, there is no  

necessity of reconsidering the relevant ratio laid down in Antulay’s case (cited  

supra).  

34. Thus, we are of the clear view that the High Court was absolutely right in  

relying  on  the  decision  in  Prakash  Singh Badal  v.  State  of  Punjab  (cited  

supra) to  hold  that  the  appellants  in  both  the  appeals  had  abused  entirely  

different office or offices than the one which they were holding on the date on  

which cognizance was taken and, therefore, there was no necessity of sanction  

under Section 19 of the Act as held in K. Karunakaran v. State of Kerala (cited  

supra) and the later decision in Prakash Singh Badal v. State of Punjab (cited  

supra).  The appeals are without any merit and are dismissed.

……………………….J.  [V.S. Sirpurkar]

 ………………….….J.

    [T.S. THAKUR]

New Delhi; July 4, 2011.

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