Judges: B.C. Ray, K. Jagannatha Shetty, L.M. Sharma, M.N. Venkatachaliah and J.S. Verma, JJ.

Facts:

The appellant started his life as an Advocate in the High Court of Madras and elevated to the Bench as a permanent Judge of the Madras High Court and became the Chief Justice of the same. During his tenure as the judge and Chief Justice he was said to have acquired assets disproportionate to his known source of income. The complaint in this regard was made to the Delhi Special Police Establishment (CBI). The CBI registered a case against him with issuance of a First Information Report. The matter was lateron transferred to the Court of Special Judge, Madras. The appellant proceeded on leave and subsequently retired on attaining the age of superannuation.

A charge sheet was filed against the appellant before the Special Judge, Madras. The appellant alleged to be committed the offence of criminal misconduct under Clause (e) of Section 5(1) of Prevention of Corruption Act, 1947 which is punishable under Section 5(2) of the Act. The appellant moved to the High Court of Madras under Section 482 of the Cr.P.C. to quash the criminal proceedings. The Full Bench of the High Court by majority view has dismissed his case. However, in view of the importance of the Constitutional questions involved in the case, the High Court granted certificate for appeal to Supreme Court. Hence, the present appeal.

Issues:

I. Whether a Judge of the Supreme Court or a Judge of a High Court is a public servant within the meaning of Section 2 of the Prevention of Corruption Act, 1947 and can be bought within the purview of Clause (c) of Section 6(1) of the Act?

II. What are the ingredients of the offence alleged i.e. Clause (e) of Section 5(1) which is punishable under Section 5(2) of the Act and the requirements of the charge-sheet filed against the appellant?

Law:

Prevention of Corruption Act, 1947 - Section 2 - For the purposes of this Act, "public servant" means a public servant as defined in Section 21 of the Indian Penal Code.

Prevention of Corruption Act, 1947 - Section 6 - (1) No court shall take cognizance of an offence punishable under Section 161 (or Section 164) or Section 165 of the Indian Penal Code, or under Sub-section (2) (or Sub-section 3A) of Section 5 of this Act, 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 the) State 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 Central Government (of the) State 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 whether the previous sanction as required under Sub-section (1) should be given by the Central or 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.

Prevention of Corruption Act, 1947 - Section 5(1)(e) - if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Contentions:

Appellant

I. The power to remove a Judge is not vested in any single individual or authority. No single person or authority is competent to take even cognizance of any allegation of misconduct of a Judge, or to take legal action for his removal. The power to remove a Judge is vested in the two Houses of Parliament and the President. The process and power are both integrated in Parliament and Parliament alone is competent to remove a Judge, But Parliament cannot be the sanctioning authority for the prosecution of a Judge. The grant of sanction requires consideration of material collected by the investigating agency and Parliament cannot properly consider the material. It would be reasonable to presume that the Legislature while enacting Clause (c) of Section 6(1) of the Act could, not have intended Parliament to be the sanctioning authority. The other authority cannot be involved to grant sanction for prosecution of a Judge since it would be inconsistent with the provisions of the Act and the Constitutional requirements. Thus, it is necessary to exclude the Judges of the Supreme Court and of the High Courts from the operation of the Act.

II. The President cannot act independently. The President exercises his powers by and with the advice of his Council of Ministers. The Executive may misuse the power by interfering with the judiciary. The Court shall avoid interpretation which is likely to impair the independence of the judiciary.

III. A separate Parliamentary law to deal with the criminal misconduct of Judges of superior courts consistent with the constitutional scheme for their removal could be enacted and such a legislation alone would ensure judicial independence and not the present enactment. A suggestion was also made that since 'misbehaviour' under Clause (4) of Article 124 of the Constitution and 'criminal misconduct' under Section 5(1) of the Act being synonymous, the constitutional process for removal of the Judge must he gone through first and only after his removal the prosecution if need be recommended in the same process. Otherwise, it is said that it would lead to anomaly since there is no power either in the Constitution or under any other enactment to suspend the Judge or refuse to assign work to the Judge pending his trial or conviction in the criminal Court and the Judge can insist on his right to continue till his removal even after his conviction and sentence.

IV. There is no law prohibiting a public servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence of criminal misconduct only when the accused is unable to account for it.

Solicitor General

I. The order of the President for removal of a Judge is imperative under Clause (4) of Article 124 of the Constitution and the President could be the proper authority under Clause (c) of Section 6(1) of the Act.

Analysis:

Justice K. Jagannatha Shetty, (Majority)

Judges - Public Servant - Applicability of PC Act

I. The relationship of master and servant as is ordinarily understood in common law does not exist between the Judges of higher judiciary and the Government. Where there is relationship of master and servant the master would be in commanding position. He has power over the employee not only to direct what work the servant is to do, but also the manner in which the work is to be done. The servant undertakes to serve the master and obey the reasonable orders within the scope of his duty. It is implicit in such relationship that the servant may disobey the master's order only at his peril. But there is no such relationship between the Judges and their appointing authority that is, the Government. The judges are not bound nor do they undertake to obey any order of the Government within the scope of their duties. Indeed, they are not Judges if they allow themselves to be guided by the Government in the performance of their duties.

II. Section 21 of the IPC while defining "public servant" has denoted as many as twelve categories of persons. It includes not only the State and Central Government employees but also others like Judge, juryman, assessor and arbitrator. It also includes every person in the service or pay of the Government or remunerated by fees or commission by the Government. Each category is different from other and there is hardly any relationship of master and servant in some of the categories. The provisions of Clauses (a) and (b) of Section 6(1) of the Act covers certain categories of public servants and the 'other' which means remaining categories are brought within the scope of Clause (c). Clause (c) is independent of and separate from the preceding two clauses. The structure of the section does not permit the applicability of the rule of ejusdem generis.

III. There are, however, two requirements for the applicability of Clause (c) of Section 6(1) to a Judge of the higher judiciary. First, the Judge must be a public servant. Second, there must be an authority competent to remove the Judge from his office. If these two requirements are complied with, a Judge cannot escape from the operation of the Act.

IV. From the very commencement of the IPC "Every Judge" finds a place in the categories of "public servant" defined under Section 21 of IPC. It was specifically denoted in the third category of public servant under Section 21 of IPC.

V. The expression "Every Judge" used in the third category of Section 21 indicates all Judges and all Judges of all Courts. It is a general term and general term in the Act should not be narrowly construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore be excluded from the definition of public servant. He squarely falls within the purview of the Act provided the second requirement under Clause (c) of Section 6(1) is satisfied.

VI. The second requirement for attracting the provisions of Clause (c) of Section 6(1) to a Judge of the superior Judiciary is that for the purpose of granting sanction for his prosecution, there must be an authority and the authority must be competent to remove the Judge.

VII. Parliament could not have been intended to be the sanctioning authority under Clause (c) of Section 6(1). The composition of Parliament consisting of the President and two Houses(Article 79) makes it unsuitable to the task. The nature of transacting business or proceeding in each House renders it impracticable. The individual Member of the House takes part in a proceeding usually by speech and voting; but the conduct of Judge in the discharge of his duties cannot be discussed. Article 121 provides "that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided." The only exception made in the Constitution for discussion on the conduct of a Judge is when the motion is taken up for his removal. On no other occasion the conduct of a Judge in the discharge of duties could be the subject matter of discussion in the two Houses of Parliament. Without discussion, it would be difficult for Parliament to make an objective judgment with regard to grant of sanction for prosecution. Parliament cannot therefore be the proper authority for granting sanction for the prosecution of a Judge.

VIII. That does not however, follow that the Judges of superior Courts are entitled to be excluded from the scope of the Act as contended for the appellant. That would be defeating the object of the Act. The Act was intended to cover all categories of public servants. The apparent policy of the legislation is to ensure a clean public administration by weeding out corrupt officials. The Preamble of the Act indicates that the Act was intended to prevent more effectively the bribery and corruption by public servants. This Court had an occasion to examine the broad outlines of the Act.

IX. The President is not an outsider so far judiciary is concerned. The President appoints the judges of the High Courts and the Supreme Court in exercise of his executive powers. Clause (1) of Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Similarly the President appoints the Judges of the Supreme Court. Clause (2) of Article 124 provides that every Judge of the Supreme Court shall be appointed by the President in consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary for the purpose and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

X. For the purpose of Clause (c) of Section 6(1) of the Act the President of India is the authority competent to give previous sanction for the prosecution of a judge of the Supreme Court and of the High Court.

Sanction or prosecution of the appellant under Section 6 was necessary

I. The High Court has expressed the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the service on attaining the age of superannuation and was not a public servant on the date of filing the chargesheet. The view taken by the High Court appears to be unassailable. The scope of Section 6 was first considered by this Court in S.A. Venkataraman's case, where it was observed that Section 6 of the Act must be considered with reference to the words used in the section independent of any construction which may have been placed by the decisions on the words used in Section 197 of the Cr.P.C. The Court after analysing the terms of Section further observed that "there is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed."

Ingredients of the offence alleged and the requirements of the charge-sheet filed against the appellant

I. The first part of Clause (e) of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income, the offence of criminal misconduct is attributed to the public-servant. However, it is open to the public servant to satisfactorily account for such disproportionality of assets. But that is not the same thing to state that there is no offence till the public servant is able to account for the excess of assets. If one possesses assets beyond his legitimate means, it goes without saying that the excess is out of ill-gotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. That is the substance of Clause (e) of Section 5(1).

II. The charge sheet contains all the requirements of Section 173(2). It states that the investigation shows that between 1 May 1969 and 24 February 1976 the appellant as the Chief Justice of the High Court of Madras was in possession of the pecuniary resources and property in his own name and in the name of his wife and two sons etc., which were disproportionate by Rs. 6,41,416.36 to the known sources of income over the same period and cannot satisfactorily account for such disproportionate pecuniary resources and property. The details of properties and pecuniary resources of the appellant also have been set out in clear terms. No more is required to be stated in the charge sheet. It is fully in accordance with the terms of Section 173(2) Cr.P.C. and Clause (e) of Section 5(1) of the Act.

B.C. Ray, J.; [Concurring]

I. The appellant ceases to be a public servant as he resigned from the office. Therefore, at the time of filing the FIR the appellant ceases to be a public servant and so no sanction under Section 6(1)(c) of the act is necessary. The main plank of the argument regarding sanction is, therefore, nonexistent.

II. In these circumstances the judgment and order of the High Court dismissing the application under Section 482 of the CrPC is in my considered opinion, wholly in accordance with law and as such the Order of the High Court has to be upheld in any circumstances. I agree with the conclusion of my learned brother Shetty, J. The appeal is, therefore, dismissed.

J.S. Verma, J. (Dissenting)

I. The view that judges of the High Courts and the Supreme Court are outside the purview of the Prevention of Corruption Act, fits in with the constitutional scheme and is also in harmony with the several nuances of the entire existing law relating to the superior Judges while the contrary view fouls with it at several junctures and leaves many gaping holes which cannot be filled by judicial exercise. The patchwork of proposing guidelines suggested by the learned Solicitor General apart from being an impermissible judicial exercise, also does not present a complete and harmonious picture and fails to provide answers to several obvious queries which arise. The inescapable conclusion, therefore, is that the Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court.

II. Any attempt to bring the Judges of the High Courts and the Supreme Court within the purview of the Prevention of Corruption Act by a seemingly constructional exercise of the enactment, appears to me, in all humility, an exercise to fit a square peg in a round hole when the two were never intended to match.

III. I would, therefore, allow the appeal even though by the majority view it must fail.

Conclusion:

I. The purpose of Clause (c) of Section 6(1) of the Act, the President of India is the authority competent to give previous sanction for the prosecution of a judge of the Supreme Court and of the High Court.

II. Appellant ceases to be a public servant as he resigned from the office. Therefore at the time of filing the FIR the appellant ceases to be a public servant and so no sanction under Section 6(1)(c) of the said act is necessary.

III. Appeal Dismissed and trial court is directed to proceed with the case.