Order
1. In our view, the High Court rightly relied upon the decision rendered by the Constitution Bench of this Court in R.S Nayak v. A.R Antulay (1984) 2 SCC 183 in arriving at the conclusion that the sanction under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”) was not required to be obtained in the facts of the present case.
2. Facts of the case are that the petitioner was appointed on 8-11-1994 as Chairman and Managing Director of Goa Shipyard Ltd., a Central Government undertaking. Thereafter on 12-2-1999, a raid was conducted by CBI on the premises of the petitioner after registering a case against him. On 7-11-1999, the petitioner retired as Chairman and Managing Director of Goa Shipyard Ltd. Thereafter on 8-3-2000, he was appointed as Chairman and Managing Director of Transformers and Electricals Ltd. by the State of Kerala. While he was functioning as such, on 20-11-2000, a charge-sheet was submitted before the Special Judge, South Goa at Margoa on the basis of the FIR which was lodged on 5-2-1999. It was contended by the petitioner that without obtaining the previous sanction, prosecution under the PC Act cannot be launched against him. That contention was rejected by the trial court as well as the High Court by relying upon the decision in Antulay case (1984) 2 SCC 183. Hence, this petition.
3. Learned counsel for the petitioner vehemently submitted that the issue raised in this petition requires consideration because the finding given in Antulay case (1984) 2 SCC 183 is obiter. In the said case, this Court specifically dealt with similar contention and observed thus:
“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 (sic misused) 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 us. 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 (sic misused) 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 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. One 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 is contrary to all canons of construction and leads to an absurd end 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 rogue's charter. (See W. Devis & Sons Ltd. v. Atkins (1977) 3 All ER 40.)”
(emphasis supplied)
4. The Court after considering the earlier decisions emphatically held that the decision which lays down that in case where a public servant has ceased to hold the office, sanction is required to be obtained, is not the correct interpretation of Section 6 (as it was). Relevant discussion is as under:
“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 decision in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of Section 6.”
5. Hence, it is difficult to accept the contention raised by Mr U.R Lalit, the learned Senior Counsel for the petitioner that the aforesaid finding given by this Court in Antulay case (1984) 2 SCC 183 is obiter.
6. Further, under Section 19 of the PC Act, sanction is to be given by the Government or the 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. The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. The word “office” repeatedly used in Section 19 would mean the “office” which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted. Sub-sections (1) and (2) of Section 19 are 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.”
(emphasis supplied)
7. Clauses (a) and (b) of sub-section (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words “who is employed” in connection with the affairs of the Union or the State Government. If he is not employed then Section 19 nowhere provides for obtaining such sanction. Further, under sub-section (2), the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, be discharged or dismissed then the question of removing would not arise. Admittedly, when the alleged offence was committed, the petitioner was appointed by the Central Government. He demitted his office after completion of five years' tenure. Therefore, at the relevant time when the charge-sheet was filed, the petitioner was not holding the office of the Chairman of Goa Shipyard Ltd. Hence, there is no question of obtaining any previous sanction of the Central Government.
8. In this view of the matter, we find no substance in this petition and the same is dismissed.