Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
CASE NO.:
Appeal (crl.) 1276 of 2006
PETITIONER:
Lalu Prasad @ Lalu Prasad Yadav
RESPONDENT:
State of Bihar Through CBI (AHD) Patna
DATE OF JUDGMENT: 06/12/2006
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 5865 of 2005)
WITH
CRIMINAL APPEAL NO. 1278 OF 2006
(Arising out of SLP (Crl.) No. 5866 of 2005)
Dr. ARIJIT PASAYAT, J
Leave granted.
In both these appeals the basic question raised relates to the
validity of sanction to prosecute the appellants for offence
punishable under Section 13(1)(e) read with Section 13(2) of the
Prevention of Corruption Act, 1988 (in short the ’Act’). Sanction has
been accorded both under the provisions of Section 19(1)(b) of the
Act and Section 197 of the Code of Criminal Procedure, 1973 (in
short the ’Code’).
Plea relating to cognizance of the offence is that previous
sanction is necessary under the Act if the public servant does not
hold the same office which he allegedly abused on the date when
the cognizance was taken by the Court. Stand of the appellants is
that even though a public servant does not hold the same office and
holds some other office, then also sanction is necessary. It is stated
in that context that the decision in R.S. Nayak v A.R. Antulay (1984
(2) SCC 183) is per incuriam because the effect of Section 19(2) of
the Act had not been considered. It is also submitted that the effect
of the recommendations made by the Law Commission in its 41st
report which necessitated sanction in terms of Section 197 of the
Code extending the protection of sanction for a retired public
servant as well should have been also extended under Section 6(1)
of the Prevention of Corruption Act, 1947 (in short the ’1947 Act’)
corresponding to Section 19(1) of the Act. This according to us is a
case of causus omissus. The decision in R. S. Nayak’s case (supra)
cannot be regarded as a binding precedent in respect of the issues
which did not relate to the three questions which were required to
be decided in that case. The order rejecting the plea of lack of
sanction and the jurisdiction is required to be passed by a speaking
order. The Secretary to the Government had no jurisdiction to sign
the sanction order on the instructions of the Governor. Therefore,
the so-called sanction of the Governor has no sanctity in the eye of
law. There is no material to show that the alleged dis-proportionate
assets were relatable to a period when Smt. Rabri Devi was the
Chief Minister. At that time she was also either holding the office of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
MLC or MLA and, therefore, the sanction granted has no validity.
It is to be noted that in Lalu Prasad Yadav’s case the sanction
had been given by the Governor. The prosecution did not obtain the
sanction separately so far as the appellant Rabri Devi is concerned
as she was only a house wife and not a public servant during the
relevant period. In the sanction accorded in respect of the
appellant- Lalu Prasad Yadav, it has been expressly mentioned that
the acts of Smt. Rabri Devi amounted to aiding and abetting of
commission of offence under Section 13(1)(e) by her husband Lalu
Prasad Yadav and she was thus liable to be prosecuted for offence
punishable under Sections 107 and 109 of the Indian Penal Code,
1860 (in short the ’IPC’).
One of the submissions made by Shri P.P. Rao, learned senior
counsel appearing for the appellants is that the courts below had
erroneously come to the conclusion that both in the case of
discharge and for framing of charge no reasons are necessarily to be
recorded. It is submitted that report of Dr. Bakshi Tekchand
Committee which formed the basis of inserting Sub-section (2) of
Section 6 of 1947 Act admits of no doubt and the same envisages
two offices being held by the public servants one at the time of
alleged offence and other at the time of taking cognizance.
Learned counsel for the respondent-State submitted that none
of the pleas raised have any substance in law.
So far as the plea relating to causus omissus is concerned the
position in law is as follows:
Two principles of construction \026 one relating to causus
omissus and the other in regard to reading the statute as a whole \026
appear to be well settled. Under the first principle a causus 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 causus 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. "An intention to produce an
unreasonable result", said Danackwerts, L.J. in Artemiou v.
Procopiou (1966 1 QB 878), "is not to be imputed to a statute if
there is some other construction available". Where to apply words
literally would "defeat the obvious intention of the legislature and
produce a wholly unreasonable result" we must "do some violence
to the words" and so achieve that obvious intention and produce a
rational construction. (Per Lord Reid in Luke v. IRC (1963 AC 557)
where at p. 577 he also observed: "this is not a new problem,
though our standard of drafting is such that it rarely emerges".
It is then true that, "when the words of a law extend not to an
inconvenience rarely happening, but due to those which often
happen, it is good reason not to strain the words further than they
reach, by saying it is causus omissus, and that the law intended
quae frequentius accidunt." "But," on the other hand, "it is no
reason, when the words of a law do enough extend to an
inconvenience seldom happening, that they should not extend to it
as well as if it happened more frequently, because it happens but
seldom" (See Fenton v. Hampton (1858) XI Moore, P.C. 347. A
causus omissus ought not to be created by interpretation, save in
some case of strong necessity. Where, however, a causus omissus
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
does really occur, either through the inadvertence of the legislature,
or on the principle quod semel aut bis existit proetereunt
legislators, the rule is that the particular case, thus left unprovided
for, must be disposed of according to the law as it existed before
such statute - Causus omissus et oblivioni datus dispositioni
communis juris relinquitur; "a causus omissus," observed Buller, J.
in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court
of law, for that would be to make laws." The principles were
examined in detail in Maulavi Hussein Haji Abraham Umarji v.
State of Gujarat and Anr. (JT 2004(6) SC 227).
The golden rule for construing all written instruments has
been thus stated: "The grammatical and ordinary sense of the
words is to be adhered to unless that would lead to some absurdity
or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of
the words may be modified, so as to avoid that absurdity and
inconsistency, but no further" (See Grey v. Pearson (1857 (6) H.L.
Cas. 61). The latter part of this "golden rule" must, however, be
applied with much caution. "if," remarked Jervis, C.J., "the precise
words used are plain and unambiguous in our judgment, we are
bound to construe them in their ordinary sense, even though it
lead, in our view of the case, to an absurdity or manifest injustice.
Words may be modified or varied where their import is doubtful or
obscure. But we assume the functions of legislators when we depart
from the ordinary meaning of the precise words used, merely
because we see, or fancy we see, an absurdity or manifest injustice
from an adherence to their literal meaning" (See Abley v. Dale 11,
C.B. 378).
The plea that the effect of Law Commission’s report and Dr.
Bakshi Tekchand report has not been considered by the Legislature
and therefore this is a case of "causus omissus" is clearly without
any substance. This Court had occasion to deal with a similar plea
in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411). It
has been noted as follows:
"13. It must be remembered that in spite of
bringing such a significant change to Section
197 of the Code in 1973, Parliament was
circumspect enough not to change the wording
in Section 19 of the Act which deals with
sanction. The reason is obvious. The sanction
contemplated in Section 197 of the Code
concerns a public servant who "is accused of
any offence alleged to have been committed by
him while acting or purporting to act in the
discharge of his official duty", whereas the
offences contemplated in the PC Act are those
which cannot be treated as acts either directly
or even purportedly done in the discharge of
his official duties. Parliament must have
desired to maintain the distinction and hence
the wording in the corresponding provision in
the former PC Act was materially imported in
the new PC Act, 1988 without any change in
spite of the change made in Section 197 of the
Code."
It may be noted that Section 197 of the Code and Section 19 of the
Act operate in conceptually different fields. In cases covered under
the Act, in respect of public servants the sanction is of automatic
nature and thus factual aspects are of little or no consequence.
Conversely, in a case relatable to Section 197 of the Code, the
substratum and basic features of the case have to be considered to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
find out whether the alleged act has any nexus to the discharge of
duties. Position is not so in case of Section 19 of the Act.
The plea of causus omissus as raised by learned counsel is at
variance with the stand taken in respect of a similar plea in
Parkash Singh Badal’s case. In that case the stand of learned
counsel for the appellant was that the provision does not exist and
has to be read into the statute and since the effect of Section 19(2)
of the Act has not been considered in R.S. Nayak’s case (supra)
therefore it is a case of per incuriam. We have examined the issue
in the said case and have turned out the plea.
In Shivendra Kumar v. State of Maharashtra (2001 (9) SCC
303) it was inter alia observed as follows:
"11. On a perusal of Section 6 of the Act, it is
clear that previous sanction is mandatorily
required for launching prosecution against a
public servant who is alleged to have
committed an offence punishable under
Section 161 or 164 or 165 IPC or under sub-
section (2) or sub-section (3-A) of Section 5 of
the Act. Indeed the language of the section is
in the form of a prohibition against any court
taking cognizance of such offences except with
previous sanction. The authority/authorities to
grant such sanction are specified in clauses
(a), (b) and (c) of sub-section (1). Under clause
(a) it is laid down that 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 sanction of the Central
Government, of the Central Government.
Under clause (b), it is provided that 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 the
State Government; and under clause (c) in the
case of any other person, of the authority
competent to remove him from his office. The
difference in the language used in clauses (a)
and (b) on the one hand and clause (c) on the
other, cannot be lost sight of. While in the
former, the Central Government or the State
Government, as the case may be, is to grant
the sanction, under clause (c) it is specifically
provided that the authority competent to
remove the delinquent public servant from
office is one who is competent to grant the
sanction. As noted earlier, Section 6(1)(b) is
applicable in the present case. The said
provision does not specify any particular
officer as the competent authority to grant
sanction. It only states that the State
Government, without whose sanction the
delinquent officer cannot be removed from
office/post, is the competent authority to pass
the order of sanction. From the sanction order,
which is available on the record, it is clear that
the Secretary, Medical Education Department
passed/signed the order of sanction of
prosecution against the appellant on behalf of
the Governor. It is not the case of the appellant
that the Secretary had no authority to act on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
behalf of the State Government. It follows that
the order of sanction in the present case was
passed by the Secretary of the Medical
Education Department with the authority of
the Governor of the State Government. No
material on record has been brought to our
notice to show that the Governor had issued
any order authorising an officer other than the
Secretary of the Department to pass order of
sanction in the case. If that was the case, then
the appellant should have produced the order
or at least raised the contention that an officer
other than the Secretary had been authorised
for that purpose. No such material appears to
have been produced. When the Secretary was
being examined in support of the sanction
order passed by him such question was also
put to him. Reliance is placed on a sentence in
his deposition that he is not the authority to
remove the appellant. This statement, without
further material, cannot form the basis of the
contention that the Secretary, Medical
Education Department was not competent to
pass the order of sanction on behalf of the
State Government. The Government functions
through its officers. The Secretary is the Head
of the Department and the principal officer
representing the State Government in the
Department concerned. Unless specific
material is produced to show that some other
officer was competent to deal with the matter
of sanction of prosecution against the
appellant it can be reasonably assumed that
the Secretary of the Department is the
competent authority to pass the order of
sanction. The object of Section 6 or for that
matter Section 197 of the Criminal Procedure
Code, which is a pari materia provision, is that
there should be no unnecessary harassment of
a public servant; the idea is to save the public
servant from the harassment which may be
caused to him if each and every aggrieved or
disgruntled person is allowed to institute a
criminal complaint against him. The protection
is not intended to be an absolute and
unqualified immunity against criminal
prosecution. In a case where it is seen that a
sanction order has been passed by an
authority who is competent under the law to
represent the State Government, the burden is
heavy on the party who challenges the
authority of such order to show that the
authority competent to pass the order of
sanction is somebody else and not the officer
who has passed the sanction order in
question."
(underlined for emphasis)
That brings us to another question which though may not have any
relevance after the rejection of the principal plea, has to be
considered because such issues frequently come up for
consideration.
The question raised relating to recording of reasons at the time
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
of framing of charge is different from a case of opinion on the basis
of which an order of discharge of the accused is passed. Sections
227 and 228 of the Code with regard to discharge of accused and
framing of charges against the accused respectively in a case triable
by Court of Session; Sections 239 and 240 concern discharge and
framing of charge in case of warrant, triable by the Magistrate
whereas Section 245 deals with discharge and framing of charges
in cases instituted other than on the police report, indicates the
difference. The relevant provisions read as follows:
"227-Discharge: If upon consideration of the
record of the case and the documents
submitted therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge considers
that there is no sufficient ground for
proceeding against the accused, he shall
discharge the accused and record his reasons
for so doing."
"228.-Framing of Charge-(1) If, after such
consideration and hearing as aforesaid, the
Judge is of opinion that there is ground for
presuming that the accused has committed an
offence which-
(a) is not exclusively triable by the Court of
Session, he may, frame a charge against
the accused and, by order, transfer the
case for trial to the Chief Judicial
Magistrate or any other Judicial
Magistrate of the first class and direct the
accused to appear before the Chief
Judicial Magistrate, or, as the case may
be, the Judicial Magistrate of the first
class, on such date as he deems fit, and
thereupon such Magistrate shall try the
offence in accordance with the procedure
for the trial of warrant-cases instituted on
a police report;
(b) is exclusively triable by the Court, he
shall frame in writing a charge against
the accused.
(2) Where the Judge frames any charge
under clause (b) of sub-section (1), the
charge shall be read and explained to the
accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."
"239. When accused shall be discharged.\027(l)
If, upon considering the police report and the
documents sent with it under Section 173 and
making such examination, if any, of the
accused as the Magistrate thinks necessary
and after giving the prosecution and the
accused an opportunity of being heard, the
Magistrate considers the charge against the
accused to be groundless, he shall discharge
the accused, and record his reasons for so
doing."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
"240. Framing of charge.\027(l) If, upon such
consideration examination, if any, and
hearing, the Magistrate is of opinion that there
is ground for presuming that the accused has
committed an offence triable under this
Chapter, which such Magistrate is competent
to try and which, in his opinion, could be
adequately punished by him, he shall frame in
writing a charge against the accused.
(2) The charge shall then be read and
explained to the accused, and he shall be
asked whether he pleads guilty of the offence
charged or claims to be tried."
"245: When accused shall be discharged(1) If
upon taking all the evidence referred to in
Section 244 the Magistrate considers, for
reasons to be recorded, that no case against
the accused has been made out which, if
unrebutted, would warrant his conviction, the
Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to
prevent a Magistrate from discharging the
accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he
considers the charge to be groundless."
This Court in State of Bihar v. Ramesh Singh (AIR 1977 SC 2018)
observed as follows:
"Reading the two provisions together in
juxtaposition, as they have got to be, it would
be clear that at the beginning and the initial
stage of the trial the truth, veracity and effect
of the evidence which the prosecutor proposes
to adduce are not to be meticulously judged.
Nor is any weight to be attached to the
probable defence of the accused. It is not
obligatory for the Judge at that stage of the
trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved,
would be incompatible with the innocence of
the accused or not. The standard of test and
judgment, which is to be finally applied before
recording a finding regarding the guilt or
otherwise of the accused not exactly to be
applied at the stage of deciding the matter
under Sections 227 or Section 228 of the Code.
At that stage the Court is not to see whether
there is sufficient ground for conviction of the
accused or whether the trial is sure to end in
his conviction."
In Kanti Bhadra Shah and Anr. v. State of West Bengal (2000
(1) SCC 722) again the question was examined. It was held that the
moment the order of discharge is passed it is imperative to record
the reasons. But for framing of charge the Court is required to form
an opinion that there is ground for presuming that the accused
has committed the offence. In case of discharge of the accused the
use of the expression "reasons" has been inserted in Sections 227,
239 and 245 of the Code. At the stage of framing of a charge the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
expression used is "opinion". The reason is obvious. If the reasons
are recorded in case of framing of charge, there is likelihood of
prejudicing the case of the accused put on trial. It was inter alia
held as follows:
"It is pertinent to note that this section
required a Magistrate to record his reasons for
discharging the accused but there is no such
requirement if he forms the opinion that there
is ground for presuming that the accused had
committed the offence which he is competent
to try. In such a situation he is only required
to frame a charge in writing against the
accused.
Even in cases instituted otherwise than
on a police report the Magistrate is required to
write an order showing the reasons only if he
is to discharge the accused. This is clear from
Section 245. As per the first sub-section of
Section 245, if a Magistrate, after taking all the
evidence considers that no case against the
accused has been made out which if
unrebutted would warrant his conviction, he
shall discharge the accused. As per sub-
section (2) the Magistrate is empowered to
discharge the accused at any previous stage of
the case if he considers the charge to be
groundless. Under both sub-sections he is
obliged to record his reasons for doing so. In
this context, it is pertinent to point out that
even in a trial before a Court of Session, the
Judge is required to record reasons only if he
decides to discharge the accused (vide Section
227 of the Code). But if he is to frame the
charge he may do so without recording his
reasons for showing why he framed the
charge."
But where the question of jurisdiction is raised and the trial
Court is required to adjudicate that issue, it cannot be said that
reasons are not to be recorded. In such a case reasons relate to
question of jurisdiction and not necessarily to the issue relating to
framing of charge. In such a case reasons dealing with a plea
relating to jurisdiction have to be recorded.
In the ultimate, analysis in these appeals is that they are
without merit and are dismissed.