N Criminal Appeal No 356 of 1983 From the judgment and order dated 25 7 83 of the Special judge Bombay in Special Case No 24 of 1983
AND Transferred Case No 348 of 1983 AND Transferred Case No 348 of 1983 Ram Jethmalani PR Vakil Ms Rani Jethmalani Mukesh Jethmalani OP Malviya Shailendra Bhardwaj and Harish Jagatlani for the appellant
Dr LM Singhvi Dalveer Bhandari AM Singhvi SS Parkar H Bhardwaj UN Bhandari HM Singh Ranbir Singh and SG Hasnain for the respondent Ashok Desai and Mrs J Wad for the petitioner in TC No 348 of 1983
MN Shroff for State of Maharashtra K Parasaran Attorney General Ms A Subhashini Gopal Subramanian RN Poddar and CV Subba Rao for Union of India
502 The Judgment of the Court was delivered DESAI J
Respondent Abdul Rehman Antulay hereinafter referred to as the accused was the Chief Minister of the State of Maharashtra from 1980 till he submitted his resignation on January 20 1982 which became effective from January 20 1982
He thus ceased
to hold the office of the Chief Minister from January 20 1982 but continues to be a sitting member of the Maharashtra Legislative Assembly till today
As the contentions canvassed before this Court are mainly questions of law facts at this stage having a peripheral relevance in the course of discussion it is unnecessary to set out the prosecution case as disclosed in the complaint filed by complainant Ramdas Shrinivas Nayak complainant for short in detail save and except few a pertinent and relevant allegations
In the process the brief history or the litigation may also be traced
The complainant moved the Governor cf Maharashtra by his application dated September 1 1981 requesting him to grant sanction to prosecute the accused as required by Sec 6 of the Prevention of Corruption Act 1947  1947 Act  for short for various offences alleged to have been committed by the accused and neatly set out in the application
Complainant then filed the first complaint in the Court of Chief Metropolitan Magistrate 28th Esplanade Bombay on September 11 1981 being Criminal Case No 76 Misc
of 1981 against the accused and others known and unknown collaborators alleging that the accused in his capacity as Chief Minister and thereby a public servant within the meaning of Sec
21 of the Indian Penal Code IPC has committed offences under Secs
161 165 IPC and Sec
5 of the 1947 Act Sec 384 and Sec
420 IPC read with Secs
109 and 120 B IPC
The complaint runs into 31 closely typed pages and carried the list of 37 witnesses
The learned Metropolitan magistrate invited the complainant to satisfy him as to how the complaint for offences under Secs
161 165 IPC and Sec
5 of the 1947 Act is maintainable without a valid sanction as contemplated by Sec
6 of 1971 Act and ultimately held that in the absence of a valid sanction from the Governor of Maharashtra the complaint filed by the complainant for the aforementioned three offences was not maintainable
The learned Metropolitan Magistrate accordingly held as per order dated October 6 1981 that the complaint was maintainable only for offences alleged to have been committed by the accused under
384 and 420 read with Secs
109 and 120B of the IPC and directed that the case be fixed for 503 examining the complainant as required by Sec
200 of the Cr
PC The complainant questioned the correctness of this order in Special Criminal Application No 1742 of 1981 filed in the High Court of Judicature at Bombay
In the meantime another development had taken place which may be briefly noticed
One Shri PB Samant who has also filed an identical complaint against the accused along with several others filed a Writ Petition No 1165 of 1981 in the High Court of Judicature at Bombay challenging the method of distribution of ad hoc allotment of cement in the State of Maharashtra as being contrary to the rule of law and probity in public life
The accused as the second respondent in this petition the first and third respondents being the State of Maharashtra and Union of India respectively
By an exhaustive speaking order dated September 23 1981 a learned Single Judge of the High Court granted rule nisi and made it returnable on November 23 1981
The writ petition came up for hearing before another learned Single Judge who by his judgment dated January 12 1982 made the rule absolute
Probably as a sequel to this decision of the High Court the accused tendered his resignation as Chief Minister on the same day and when the resignation was accepted he ceased to hold the office of the Chief Minister with effect from January 20 1982
Special Criminal Application  No 1942 of 1981 filed by the complainant against the order of the learned Chief Metropolitan Magistrate was dismissed by a Division Bench of the High Court on April 12 1982
Not the accused but the State of Maharashtra preferred an appeal by special leave under article 136 of the Constitution against the decision of the Division Bench of the High Court rejecting the special criminal application This
Court rejected the application for special leave at the threshold on July 28 1982
See State of Maharashtra vs Ramdas Shrinivas Nayak and others Promptly on the heels of the judgment of this Court the Governor of Maharashtra on the same day granted the sanction under Sec
6 of the 1947 Act to prosecute the accused in respect of specific charges set out in the order according sanction
Armed with this sanction the complainant filed a fresh complaint in the Court of the Special Judge Bombay registered as Criminal Case No 24 of 1982 against the accused as Accused No 1 and others known and unknown
In this complaint it is broadly alleged that the accused who was the Chief Minister of the State of Maha 504 rashtra between the period August 1980 to September 1981 conceived scheme of aggrandisement involving obtaining of funds from the members of the public and putting them substantially under his own control for the disbursal of the funds so obtained
The complaint proceeded to refer to the setting up of various trusts and alleged that the corner stone of the scheme involved receipt by the accused of illegal gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavor to persons or for rendering or attempting to render any service or disservice to such persons who dealt with the State Government in general and with public servants who formed part of the Government
It was specifically alleged that the scheme devised by the accused was a flagrant abuse of his official position as Chief Minister for obtaining control over funds which would be used for purposes conducive to the interest of the accused himself
The complainant proceeded to set out the abuse of office of Chief Minister by the accused citing various alleged instances such as distribution of adhoc cement contrary to law and the binding circulars granting liquor Licences as and by way of distribution of Government largesse issuing no objection certificates for letting out premises by obtaining a price for the same
The running thread through various allegations is that the accused by abusing or misusing his office of Chief Minister obtained or attempted to obtain gratification other than legal remunerations a motive or reward for doing or forbearing to do any official act as Chief Minister or for showing or forbearing to show in the exercise of his official functions favour or disfavour to persons etc
To this complaint the order granting sanction to prosecute the accused made by the Governor of Maharashtra was annexed and produced
After recording the verification of the complaint the learned Special Judge took cognizance of the offences and issued process by directing a bailable warrant to be issued in the sum of Rs 10000 with one surety and made it returnable on September 3 1983
On the process being served the accused appeared and sought exemption from personal appearance which was granted for a day and the case was adjourned to October 18 1982 for recording the evidence of the complainant and his witnesses for the prosecution
When the case was called out on October 18 1982 an application was moved on behalf of the accused inter alia contending that the Court of the learned special Judge had no jurisdiction in view of the provision contained in Sec 7 of the Criminal Law Amendment Act 505 1952  1952 Act  for short and that no cognizance can be taken of offences punishable under Secs
161 165 IPC and Sec
5 of the 1947 Act on a private complaint
The case was at that time pending in the Court of the special Judge presided over by one Shri PS Bhutta
The learned special Judge by his order dated October 20 1982 rejected both the contentions and set down the case for November 29 1982 for recording evidence of the prosecution
The learned special Judge made it abundantly clear that under no circumstance the case would be adjourned on the next occasion and if any revision or appeal is intended to be filed against the order the learned counsel for the accused should give advance notice to the learned counsel for the complainant
The accused filed Criminal Revision Application No 510 of 1982 against the order of the learned special Judge dated October 20 1982 rejecting his application
On January 16 1983 the Government of Maharashtra issued a notification in exercise of the powers conferred by sub sec
2 of Sec 7 of 1952 Act and in modification of the earlier Government order dated April 12 1982 directing that in Greater Bombay on and after the date of the notification the offences specified in sub sec
1 of sec
6 of the 1947 Act which are investigated by the Anti Corruption Bureau of Police in Greater Bombay except special cases No 14 15 and 16 of 1977 and Special Case No 31 of 1979 to 37 of 1979 both inclusive shall continue to be tried by Shri RB Sule
The net outcome of this notification was that Special Case No 24 of 1982 pending in the Court of Special Judge Shri PS Bhutta would stand transferred to the Court of Shri RB Sule Additional Special Judge for Greater Bombay
On a reference by the learned Single Judge a Division Bench of the Bombay High Court heard and dismissed on arch 7 1983 Criminal Revision Application No 510 of 1982 filed by the accused against the order of learned special Judge Shri PS Bhutta dated October 20 1982
The Division Bench in terms held that the private com plaint was maintainable and as the required notification has already been issued Shri RB Sule will have jurisdiction to try Special Case No 24 of 1982
The learned trial Judge Shri RB Sue on receipt of the record of the case issued a notice on April 27 1982 calling upon all parties to appear before him on April 21 1983
lt appears on July 8 1783 two applications were moved on behalf of the accused urging the learned trial Judge i to discharge the accused inter alia on the ground that the charge was groundless and that even though the accused 506 had ceased to be the Chief Minister on the date of taking cognizance of the offences he was a sitting member of the Maharashtra Legislative Assembly and as such a public servant and in that capacity a sanction to prosecute him would have to be given by the Maharashtra Legislative Assembly and the sanction granted by the Governor would not be valid in this behalf
The second petition requested the learned Judge to postponed the case till the petition for special leave field by the accused against the decision of the Division Bench cf the High Court holding that the private complaint was maintainable is disposed of Both these applications came up for hearing before Shri RB Sule who by his order dated July 25 1783 upheld the contention of the accused that MLA was a public servant within the meaning of the expression in Sec
21 12 a IPC and that unless a sanction to prosecute him by the authority competent to remove him from his office as MLA was obtained which in the opinion of the learned Special Judge
was Maharashtra Legislative Assembly the accused is entitled to be discharged
So saying the learned Judge discharged the accused
The complainant filed a petition for special leave to appeal No 1850 of 1983 and a Writ Petition Crl No 145 of 3983 against the decision
Of the learned special Judge
Both these matters came up before this Court on August 3 1983 when the matters were adjourned to August 10 1983 to enable the petitioner original complainant to file a criminal revision application against the order of the learned special Judge in the High Court
Accordingly the complainant filed Criminal Revision Application No 354 of 1983 in the High Court against the order of learned special Judge Shri RB Sule
This Court ultimately granted special leave to appeal as also rule nisi in the writ petition
By an order made by this Court the criminal revision application filed by the petitioner stands transferred to this Court
It may be mentioned that this Court has granted special leave to the accused against the decision of the Division Bench of the Bombay High Court holding that a private complaint is maintainable etc
Criminal Appeal No 247 of 1983 arising out of the said special leave petition is being heard along with this matter but that will be dealt with separately
While discharging the accused the learned special Judge held that the material date for deciding the applicability of Sec 6 of the 1947 Act is the date on which the court is asked to take cognizance of the offence
Proceeding further it was held that even though the accused had ceased to hold the office of the Chief Minister on the date 507 on which cognizance was taken by the learned special Judge Shri Bhutta yet on that date he was a sitting MLA and was therefore a public servant within the meaning of the expression in Sec 21 12a in as much as the MLA is a person in the pay of the Government or at any rate he is remunerated by fees for performance of public duty by the Government and therefore he is a public servant
As a corollary the learned Judge held that as on the date of taking cognizance of the offence the accused was a public servant he could not be prosecuted without a valid sanction as contemplated by Sec 6 of the 1947 Act
The learned Judge further held that the MLA holds an office and he can be removed from that office by the Legislative Assembly because the latter has the power to expel a member which would amount to removal from office
The learned Judge further held that as there was no sanction by the Maharashtra Legislative Assembly to prosecute the accused and as the Governor had no power to sanction prosecution of the accused in his capacity as MLA the accused is entitled to be discharged for the of offences under Secs
161 165 120 B 109 IPC and Sec
5 of the 1947 Act for want of a valid sanction for prosecution and in respect of the other offences the accused is entitled to be discharged on the ground that the court of the special Judge had no jurisdiction to try the accused for those offences
In respect of those other offences the learned Judge directed the complaint to be returned to the complainant for presenting it to the proper court
It may be mentioned that by a common order in Special Case No 3 of 1983 instituted upon the complaint of Mr PB Samant the accused was discharged
21 IPC defines a Public Servant 
The relevant clauses may be extracted as under 21
The words public servant  denote a person falling under any of the descriptions hereinafter following namely Third Every Judge including any person empowered by law to discharge whether by himself or as a member of any body of persons any adjudicatory functions
Seventh Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement Twelfth Every person a in the service or pay of the Government or remunerated 508 by fees or commission for the performance of any public duty by the Government b in the service or Pay of a local authority a corporation establishes by or under a Central Provincial or State Act or a Government Company as defined in Section 617 of the 
Explanation 1 Persons falling under any of the above descriptions are public servants whether appointed by the Government or not Sec
17 defines the expression Government to denote the Central Government or the Government of a State
Sec 14 defines the expression servant of Government to denote any officer or servant continued appointed or employed in India by or under the authority of Government
19 defines the word Judge  as under The word Judge denotes not only every person who is officially designated as a Judge but also every person Who is empowered by law to give in any legal proceeding civil or criminal a definitive judgment or a judgment which if not appealed against would be definitive or a judgment which if confirmed by some other authority would be definitive or who is one of a body of person which body of persons is empowered by law to give such a judgment Sec 7 provides that every expression which is explained in any part of the Code IPC is used in every part of this Code in conformity with the explanation  Sec
5 of the 1947 Act defines the offence of criminal misconduct and a public servant who commits an offence of criminal misconduct is liable to be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine
6 provides for a sanction as a pre condition for a valid prose 509 cution for offences punishable under Sec 161 164 165 IPC and Sec
5 of the 1947 Act
It reads as under 61 No court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under sub section 2 of Section S of this Act alleged to have been committee by a public servant except with the previous sanction a in the case of a person who is employed in connection with affairs of the Union and is not removable from his office save by or with the sanction of the Central 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 c in the case of ally 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
With a view to eradicating the evil of bribery and corruption the Government of India set up a Committee to make recommendations for the improvement of the laws relating to bribery and corruption under the Chairmanship of Dr Bakshi Tek Chand
The recommendations of the Committee led to the enactment of the Criminal Law Amendment Act 1952 By the 1952 Act power was conferred on the State Government to appoint special offences as may be necessary for such area or areas as may be specified in the notification to try the following offences namely offences punishable under Sections 161 162 163 164 165 and 165A IPC and Sec
5 of the 1947 Act and any conspiracy to commit or any attempt to commit or any abetment of 510 any of the offences hereinabove mentioned See 7 conferred exclusive jurisdiction on the special Judges appointed under See
Sub sec
2 of Sec 7 provides for specific territorial jurisdiction of a special Judge
Sub sec
3 conferred power on the special Judge also to try any offence other than an offence specified in
Sec 6 with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
Sec 8 prescribed the procedure to be followed by the special Judge in the trial of the offences
The Court of special Judge was deemed to be a Court of Sessions trying cases without a jury within the local limits of the jurisdiction of the High Court for the purposes of Chapter XXXI and XXXII of the Code of Criminal Procedure as provided by Sec 9
The appellant the original complainant contends that the learned special Judge was in error in holding that MLA is a public servant within the meaning of the expression under Sec
2112a
The second submission was that if the first question is answered in the affirmative it would be necessary to examine whether a sanction as contemplated by Sec
6 is necessary
If the answer to the second question is in the affirmative it would be necessary to identify the sanctioning authority
The broad sweep of the argument was that the complainant in his complaint has alleged that the accused abused his office of Chief Minister and not his office if any as MLA and therefore even if on the date of taking cognizance of the offence the accused was MLA nonetheless no sanction to prosecute him is necessary as envisaged by Sec 6 of the 1947 Act
lt was urged that as the allegation against the accused in the complaint is that he abused or misused his office as Chief Minister and as by the time the complaint was filed and cognizance was taken he had ceased to hold the office of the Chief Minister no sanction under Sec
6 was necessary to prosecute him for the offences alleged to have been committed by him when the accused was admittedly a public servant in his capacity as Chief Minister
On behalf of the accused it was contended that not only the accused would be a public servant as falling within the meaning of tile expression in Sec
2112a but he would also be a public servant within the contemplation of clauses 3 and 7 of Sec 21
The next limb of the argument was that if an accused hold plurality of Offices each of which confers on him 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 no allegation of abuse or misuse of other office held as public servant sanction of each authority com 511 petent to remove him from each of the offices would be a sine qua non under Sec 6 before a valid prosecution can be launched against the accused
On these rival contentions some vitat and some not so vital points arise for consideration some easy of answer and some none tooeasy
For their scientific and logical treatment they may be formulated
a What is the relevant date with reference to which a valid sanction is a pre requisite for the prosecution of a public servant for offences enumerated in Sec
6 of the 1947 Act b If the accused holds plurally of offices occupying each of which makes him a public servant is sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him necessary and if anyone of the competent authorities fails or declines to grant sanction is the Court precluded or prohibited from taking cognizance of the offence with which the public servant is charged  c Is it implicit in Sec
6 of the 1947 Act that sanction of that competent authority alone is necessary which is entitled to remove the public servant from the office which is alleged to have been abused for misused for corrupt motives  d Is MLA a public servant within the meaning of the expression in Sec
2112a IPC  e Is MLA a public servant within the meaning of the expression in Sec213 and Sec
217 ICP  f Is sanction as contemplated by Sec 6 of the 1947 Act necessary for prosecution of MLA  g If the answer to f is in the affirmative which is the Sanctioning Authority competent to remove MLA from the office of Member of the Legislative Assembly Re
a The 1947 Act was enacted as its long title shows to make more effective provision for the prevention of bribery and corruption
Indisputably therefore the provisions of the Act must receive 512 such construction at the hands of the court as would advancehte object and purpose underlying the Act and at any rate not defeat it
If the words of the statute are clear and unambiguous it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision
The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self defeating
The court is entitled to ascertain the intention of the legislature to remove the ambiguity or the plain meaning of the words used in the statute would be self defeating
The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute
This rule of construction is so universally accepted that it need not be supported by precedents
Adopting this rule of construction whenever a question of construction arises upon ambiguity or where two views are possible of a provision it would be the duty of the court to adopt that construction which would advance the object underlying the Act namely to make effective provision for the prevention of bribery and corruption and at any rate not defeat it
Section 6 bars the court from taking cognizance of the offences therein enumerated allegel to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction
Sec 8 of 1952 Act prescribes procedure and powers of special Judge empowered to try offences set out in Sec
6 of 1947 Act
Construction of Sec 8 has been a subject of vigorous debate in the cognate appeal
In this appeal we will proceed on the assumption that a special Judge can take cognizance of offences he is competent to try on a private complaint
6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clause a b  c of sub Sec
The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations
The policy underlying Sec 6 and similar sections is that there should not be unnecessary harassment of public servant
Sec CR Bansi vs State of Maharashtra1
Existence thus of a valid sanction is a pre requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant
The bar is to the taking of cognizance of offence by the court
Therefore when the court is called upon to take cognizances of such offences it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by 513 him as public servant
Undoubtedly the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161 164 165 IPC and Sec
52 of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant
If it is contemplated to prosecute public servant who has committed such offences when the court is called upon to take cognizance of the offence a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence
A trial without a valid sanction where one is necessary under Sec
6 has been held to be a trial without jurisdiction by the court
See RR Chari vs State of UP1 and SN Bose vs State of Bihar2 In Mohd Iqbal Ahmed v State of AP3 it was held that a trial without a sanction renders the proceedings ab initio void
But the terminus a quo for a valid sanction is the time when the court is called upon to the cognizance of the offence
If therefore when the offence is alleged to have been committed the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant he has ceased to be public servant no sanction would be necessary for taking cognizance of the offence against him
This approach is in accord with the policy underlying Sec 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution
If he has ceased to be a public servant in the meantime this vital consideration ceases to exist
As a necessary corollary if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant Sec 6 is not attracted
This aspect is not more res integra
In SA Venkataraman vs The State4 this Court held as under In or opinion in giving effect to the ordinary meaning of the words used in section 6 of the Act the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of section 6 can apply
In the present appeals admittedly the appellants had cease to be public servants alleged to have been committed by them as public servants
Accordingly the provisions of s6 of the Act 514 did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority
And this view has been consistently followed in CR Bansi s case and KS Dharmadatan vs Central Government  Ors1 It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant required by Sec 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused
The accused tendered resignation of his office as Chief Minister and ceased to hold the office of Chief Minister with effect from January 20 1982
The complaint from which the present appeal arises and which was registered as Criminal Case No 2482 appears to have been filed on August 9 1982 and the cognizance was taken by the learned Magistrate on the same day
It unquestionably transpires that long before the date on which the cognizance was taken by the learned special Judge the accused had ceased to hold the office of the Chief Minister and as such had ceased to be a public servant
In other words he was not public servant in his capacity as Chief Minister on August 9 1982 when the court took cognizance of the offence against him
A fortiori no sanction as contemplated by Sec 6 was necessary before cognizance of the offence could be taken against the accused for offences alleged to have been committed in his former capacity as public servant
Re b and c It was strenuously contended that if the accused has held or holds a plurality of offices occupying each one of which makes him a public servant sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him would be necessary and if anyone of the competent authorities fails or declines to grant sanction the court is precluded or prohibited fome taking cognizance of the offence with the public servant is charged
This submission was sought to be repelled urging that it is implicit in Sec 6 that sanction of that authority alone is necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motives
61c is the only provision relied upon on behalf of the accused to contend that as MLA he was a public servant on the date of taking cognizance of the offences and therefore sanction of that authority comepetent to remove him from that office is a since qua non for taking cognizance of offences
6 1c bars taking cognizance of an 515 offence alleged to have been committed by public servant except with the previous snaction of the authority competent to remove him from his office
In order to appreciate the rival contentions the fact situation relevant to the topic under discussion may be noticed
At a general election held in 1980 accused was elected as Member of the Legislative Assembly of Maharashtra State fom Shrivardhan Assembly Constituency
He was appointed as Chief Minister of Maharashtra State and he was holding that office at the time he is alleged to have committed the offences set out in the complaint filed against him
He tendered his resignation of the office of the Chief Minister and ceased to hold that office with effect from January 20 1982
However he continued to retain his seat as MLA The contention is that as MLA he was a public servant a submission seriously controverted which we would presently examine and that he was such public servant even on the date on which the court took cognizance of the offences set out in the complaint without a valid sanction and therefore the court had no jurisdiction to take cognizance of the offences
In support of the submission it was urged that if the policy underlying Sec 6 and similar provisions like Sec
197 Cr
PC was to spare the harassment to the public servant consequent upon launching of frivolous or speculative prosecutions the same would be defeated if it is held that the sanction to prosecute is necessary from an authority competent to remove the public servant from the office which he is alleged to have misused or abused
Proceeding along this line it was urged that even if the accused has ceased to be a public servant in one capacity by ceasing to hold the office which he is alleged to have misused or abused yet if he continued to be a public servant in another capacity the authority competent to remove him from the latter office would have to decide whether the prosecution is frivolous or speculative and in larger public interest to thwart it by declining to grant the sanction
It was also urged that if a public servant has to discharge some public duty and perform some public functions and he is made to cool his heels in law courts public interest would suffer by keeping him away from his public duty and therefore to advance the object underlying Sec
6 the court must hold that if the public servant who is being prosecuted holds more than one public office occupying each one of which makes him public servants a sanction to prosecute of each competent authority entitled to remove him from each office is necessitous before taking cognizance of offences against him
It was urged that this approach would advance and 516 buttress the policy underlying Sec
6 and the contrary view would defeat the same
Offences prescribed in Sec 161 164 and 165 IPC and Sec
5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant
A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office
Power generally is not conferred on an individual person
In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status
The holder of the office alone would have opportunity to abuse or misuse the office
These sections codify a well recognised truism that power has the tendency to corrupt
It is the holding of the office which gives an opportunity to use it for corrupt motives
Therefore the corrupt conduct is directly attributable and flows from the power conferred on the office
This interrelation and interdependence between individual and the office he holds is substantial and not serverable
Each of the three clauses of sub section
1 of Sec 6 uses the expression office  and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Sec
6 requires a sanction before taking cognizance of offences committed by public servant
The offence could be committed by the public servant by misusing or abusing the power of office and it is from that office the authority must be competent to remove him so as to be entitled to grant sanction
The removal would bring about cessation of interrelation between the office and abuse by the holder of the office
The link between power with opportunity to abuse and the holder of office would be severed by removal from office
Therefore when a public servant is accused of an offence of taking gratification other than local remuneration for doing or forbearing to do an official act Sec
161 IPC or as a public servant abets offences punishable under Secs
161 and 163 Sec
164 IPC or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant Sec 165 IPC or commits criminal misconduct as defined in Sec
5 of the 1947 Act it is implicit in the various offences that the public servant has misused or abused the power of office held by him public servant
The expression offices  in the three sub clauses of Sec
61 would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused
517 This interrelation between to office and its abuse if serered would render Sec
6 devoid of any meaning
An this interrelation clearly provides a clue to the understanding of the provision in Sec
6 providing for sanction by a competent authority who would be able to judge the action of the public servant before removing the bar by granting sanction to the taking of the cognizance of offences by the court against the public servant
Therefore it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider
By a catena of decisions it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case evidence collected and other incidental facts before according sanction
A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecutions and the aforesaid requirements must therefore be strictly complied with before any prosecution could be launched against public servants
See Mohd Iqbal Ahmad vs State of Andhra Pradesh
The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative
That authority alone would be competent to judge whether on the facts alleged there has been an abuse or misuse of office held by the public servant
That authority would be in a position to know what was the power conferred on the office which the public servant hold how that power could be abused for corrupt motive and whether prima facie it has been so done
That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused
It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office hold by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant
That is why the legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office
518 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 Sec 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 contemplated by Sec 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 Sec 6 would render it as a shield to an unscrupulous public servant
Someone interested 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 Sec
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 519 must at all costs be interpreted in such a way that it would not operate as a rougue s charter
See Davis  Sons Ltd vs Atkins Support was sought to be drawn for the submission from the decision of the Andhra Pradesh High Court in Air Commodore Kailash Chand vs The State SPE Hyderabad2 and the affirmance of that decision by this Court in The State SPE Hyderabad vs Air Commodore Kailash Chand3 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 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 ie 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 Sec
52 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 that 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 SA Venkataraman s case that if the public servant had ceased to be a public servant at the time of taking cognizance of the offence Sec 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 520 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 Sec 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 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 Sec 6
Therefore upon a true construction of Sec 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
In the complaint filed against the accused it has been repeatedly alleged that the accused as Chief Minister of Maharashtra State accepted gratification other than legal remuneration from various sources 521 and thus committed various offences set out in the complaint
No where not even by a whisper it is alleged that the accused has misused or abused for corrupt motives his office as MLA
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
However as the real bone of contention between the parties was whether as MLA the accused was a public servant and the contention was canvassed at some length we propose to deal with the same
The learned special Judge held that the accused as MLA is a public servant because he is in the pay of the Government or he is remunerated by feces for the performance of public duty by the Government
The learned special Judge simultaneously rejected the contention canvassed on behalf of the accused that the accused is a public servant because he is a person empowered by law to discharge as a member of a body of persons adjudicatory functions as contemplated by the Third clause of Sec 21
Re d We would first examine the correctness or otherwise of the finding of the learned special Judge whether the accused as MLA was in the pay of the Government or was remunerated by fees for the performance of any public duty by the Government so as to be clothed with the status of a public servant within the meaning of cl
12a of Sec
21 IPC
12a provides that every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government would be a public servant
The three limbs of cl
12a according to the learned special Judge are i Every person in the service of the Government or ii Every person in the pay of the Government or iii Every person remunerated by fees or commission for the performance of any public duty by the Government
If any person falls in any of the three limbs according to the 522 learned special Judge he would be a public servant within the meaning of the expression in Sec
It was conceded before the learned special Judge and not retracted before us that the case of the accused does not fall in the first limb ie the accused as MLA could not be said to be in the service of the Government
The contention is that the accused while receiving his salary as MLA under the Maharashtra Legislature Members  Salaries and Allowances Act 1956 was and is in the pay of the Government
The second limb of the submission was that even if the pay which the accused received as MLA under the relevant Act would not make the accused a person in the pay of the Government nevertheless the pay received by him would be the remuneration which the accused would receive for performance of public duty from the Government
It was contended on behalf of the complainant that the expression in the pay of the Government  would in the context in which the expression is used in Sec
2112a mean only one thing that the payment must be by a master to a servant and unless there is relationship of master and servant or relationship of command and obedience between the payer and the payee mere payment even if styled as pay would not mean that the payee is in the pay of the payer
Proceeding along it was submitted that MLA could not be said to be subject to obedience of any command by the Government and therefore the accused as MLA could not be said to be in the pay of the Government 
And as regards the third limb it was urged that the accused as MLA was not performing any public duty for the performance of which he was remunerated by the Government
Additionally it was urged that the expression Government  in cl
12 a must receive the same meaning assigned to it in Sec
17 IPC meaning thereby that it denotes the Central Government or the Government of a State as the context requires
It was urged that in that sense the expression Government  in cl
12 a would mean Executive Government  and it would be adding insult to injury if it can ever be said that MLA is in the pay of the Executive Government or State Government
On behalf of the accused these submissions were repelled by urging that the use of word or  signifies a disjunctive and not conjuctive and that viewed from this angle the first part of cl
12 a in the service of the Government  would import the notion of master servant or command obedience relationship but the expression in the pay of the Government  would signify someone other than that included in the first limb and as the legislature could not be accused of tautology or redundancy the expression in the pay of the Government  would exclude any notion of master servant or command obedience relationship
It was submit 523 ted that conceivably there can be a person in the service of the Government though not paid by the Government and conversely there can be a person in the pay of the Government  without being in the service of the Government
It was also submitted on behalf of the accused that it would be constitutional impertinence to say that MLA does not perform any public duty
His duty may be political or moral as urged on behalf of the complainant but it is nonetheless a constitutional duty which he is performing and that duty would be comprehended in the expression public duty  in cl
12 a
As a corollary it was submitted that the remuneration in the form of pay which the accused receives and has been receiving since he ceased to be the Chief Minister under the relevant Act is remuneration for the performance of the public duty by the Government
The neat question that emerges on the rival contentions is one of construction of the expression in the pay of  and the expression Government  in cl
12 a
At the threshold learned counsel for the accused sounded a note of caution that the Court should steer clear of the impermissible attempt of the appellant to arrive at a true meaning of legislative provision by delving deep into the hoary past and tracing the historical evolution of the provision awaiting construction
It was submitted with emphasis that this suggested external aid to construction falls in the exclusionary rule and cannot be availed of
Therefore it has become necessary to examine this preliminary objection to the court resorting to this external aid to construction
21 12 a acquired its present form in 1964
Mr Singhvi contended that even where the words in a statute are ambiguous and may be open to more than one meaning or sense a reference to the debates in Parliament or the report of a Commission or a Committee which preceded the enactment of the statute under consideration is not a permissible aid to construction
This is what is called the exclusionary rule
In support of the submission reliance was placed upon Assam Railways and Trading Co Ltd vs Inland Revenue Commissioners1 in which the House of Lords declined to look into the Report of the Royal Commission on Income tax in order to ascertain the meaning of certain words in the Income Tax Act 1920 on the ground that no such evidence for the purpose of showing the intention that is the purpose or object of an Act is admissible
The intention of the legislature must be ascertained from the words of the 524 statute which such extraneous assistance as is legitimate
This view appears to have been consistently followed in United Kingdom because in Katikiro of Buganda vs Attorney General1 the Privy Council held in agreement with the Court of Appeal of Eastern Africa that the contents of the White Paper were not admissible in evidence for the purpose of construing the schedule
Similarly in Central Asbestos Co Ltd vs Dodd the House of Lords declined to look at the Committee Report which preceded the drafting of the Act
In the Administrator General of Bengal vs Premlal Mullick  Ors3 the Privy Council disapproved the reference to the proceeding of the Legislature which resulted in the passing of the Act II of 1874 as legitimate aids to the construction of Sec 31 by the Appeal Bench of Calcutta High Court
Relying on these decisions a valiant plea was made to persuade us not to depart from this well accepted proposition of law in England
The trend of law manifested by these decisions broadly indicate that in the days gone by the courts in England were of the view that reference to the recommendations of a Commission or Committee appointed by the Government or statements in White Paper which shortly preceded the statute under consideration were not legitimate aids to construction of the statute even if the words in the statute were ambiguous
The trend certainly seems to be in the reverse gear in that in order to ascertain the true meaning of ambiguous words in a statute reference to the reports and recommendations of the Commission or Committee which preceded the enactment of the statute are held legitimate external aids to construction
The modern approach has to considerable extent roded the exclusionary rule even in England
Constitution Bench of this Court after specifically referring to Assam Railways and Trading Co Ltd vs IRC in State of Mysore vs RV Bidap4 observed as under The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being exercise in the ascertainment of meaning every thing which is logically relevant should be admissible  
There is a strong case for whittling
down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning 525 of the words of a statute
Where it is plain the language prevails but where there is obscurity or lack of harmony with other provisions and in other special circumstances it may be legitimate to take external assistance such as the object of the provisions the mischief sought to be remedied
 the social context the words of the authors and other allied matters
 Approaching the matter from this angle the Constitution Bench looked into the proceedings of the Constituent Assembly and The Framing of India s Constitution A Study  by B Shiva Rao
It was however urged that before affirmatively saying that in Bidap s case this Court has finally laid to rest this controversy the court may refer to Commissioner of Income Tax Andhra Pradesh Hyderabad vs Jaya lakshmi Rice and oil Mills Contractor Co1 At page 368 a bench of three Judges of this Court without so much as examining the principle underlying the exclusionary rule dissented from the view of the High Court that the report of the Special Committee appointed by the Government of India to examine the provisions of the Bill by which Sec
26A was added to the Income tax Act 1922 can be taken into consideration for the purpose of interpreting relevant provisions of the Partnership Act
However it may be stated that the Court did not refer to exclusionary rule
It dissented from the view of the High Court on the ground that the statement relied upon by the High Court was relating to clause 58 corresponding to Sec
59 of the Partnership
Act and that statement cannot be taken into consideration for the purpose of interpreting the relevant provisions of the Partnership Act
This decision was not noticed in Bidap s case but the decision in Assam Railways  Trading Co Ltd relied upon by Mr Singhvi was specifically referred to
This decision cannot therefore be taken as an authority for the proposition canvassed by Mr Singhvi
Further even in the land of its birth the exclusionary rule has received a serious jolt in Black Clawson International Ltd vs Paperwork Waldhef Ascheffenburg AC2 Lord Simon of Claisdale in his speech while examining the question of admissibility of Greer Report observed as under At the very least ascertainment of the statutory objective can immediately eliminate many of the possible meanings that the language of the Act might bear and if 526 an ambiguity still remains consideration of the statutory objective is one of the means of resolving it
The statutory objective is primarily to be collected from the provisions of the statute itself
In these days when the long title can be amended in both Houses I can see no reason for having recourse to it only in case of an ambiguity it is the plainest of all the guides to the general objectives of a statute
But it will not always help as to particular provisions
As to the statutory objective of these a report
leading to the Act is likely to be the most potent aid and in my judgment it would be more obscurantism not to avail oneself of it
here is indeed clear and high authority that it is available for this purpose
And in support of this statement of law a number of cases were relied upon by the learned Law Lord
It may also be mentioned that Per Curiam it was held that where there is an ambiguity in a statute the court may have regard to the Report of a Committee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute in order to determine the mischief which the statute was intended to remedy
Though the unanimous view was that the report of a committee presented to Parliament preceding the statute could be seen for finding out the then state of the law and the mischief required to be remedied it must be stated that the majority were of the opinion that report could not be looked at to ascertain the intention of Parliament
The minority per Lord Dilporne and Lord Simon were of the opinion that when a draft bill was enacted in a statute without any alteration Parliament clearly manifested its intention to accept committee s recommendation which would imply that Parliament s intention was to do what committee wanted to achieve by its recommendations
A reference to Halsbury s Laws of England Fourth Edition Vol
44 paragraph 901 would leave no one in doubt that reports of commissions or committees preceding the enactment of a statute may be considered as showing the mischief aimed at and the state of the law as it was understood to be by the legislature when the statute was passed  In the footnote under the statement of law cases quoted amongst others are R vs Ulugboja1 R vs Blexham2 in which Eigth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction
Therefore it can be confidently said that the exclusionary rule is flickering in its 527 dying embers in its native land of birth and has been given a decent burial by this Court
Even apart from precedents the basic purpose underlying all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament in enacting the legislation
Legislation is enacted to achieve a certain object
The object may be to remedy a mischief or to create some rights obligations or impose duties
Before undertaking the exercise of enacting a statute Parliament can be taken to be aware of the constitutional principle of judicial review meaning thereby the legislation would be dissected and subjected to microscopic examination
More  often an expert committee or a Joint Parliamentary committee examines the provisions of the proposed legislation
But language being an inadequate vehicle of thought comprising intention the eyes scanning the statute would be presented with varried meanings
If the basic purpose underlying construction of a legislation is to ascertain the real intention of the Parliament why should the aids which Parliament availed of such as report of a special committee preceding the enactment existing state of law the environment necessitating enactment of legislation and the object sought to be achieved be denied to court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation
Such denial would deprive the court of a substantial and illuminating the to construction
Therefore departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation reports of Joint Parliamentary Committee report of a commission set up for collecting
information leading to the enactment are permissible external aids to construction
In this connection it would be advantageous to refer to a passage from Crawford on Statutory Construction page 388
It reads as under The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading upto an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt but they hold definitely that the legislative history is inadmissible when there is no obscurity in the meaning of the statute
In United States vs St
Paul MM Rly Co1 it is observed that 528 the reports of a committee including the bill as introduced changes made in the frame of the bill in the course of its passage and the statement made by the committee chairman incharge of it stand upon a different footing and may be resorted to under proper qualifications 
The objection therefore of Mr Singhvi to our looking into the history of the evolution of the section with all its clauses the Reports of Mudiman Committee and K Santhanam Committee and such other external aids to construction must be overruled
Tracing the history of cl
2 of Sec
21 IPC with a view to ascertaining whether MLA would be comprehended in any of the clauses of Sec
12 so as to be a public servant it must be noticed at the outset that Indian Penal Code is a statute of the year 1860 when there were no elected legislatures and a fortiori there were no MLAs
Even if Moaulay is to be adjudged a visionary who could look far beyond his times yet in 1860 it was inconceivable for him to foresee the constitutional development of India stages by stages and to envisage the setting up elected legislatures the members of which would without anything more be comprehended as public servant in any of the subclauses of Sec 21
Undoubtedly framing of a legislation is generally not of a transient nature but it is enacted and put on the statute book for reasonably long period until the society for which it is meant undergoes a revolutionary transformation so as to make the law irrelevant or otiose
A visionary can fores possible changes which may be inter connected with the present situation one leading to the other
But the East India a Company rule which had just ended in 1857 after the first war of independence it was difficult to divine the possible revolutionary changes that may come in by 1919
At any rate at the time when the Indian Penal Code was enacted
there was no elected legislature and therefore there was no MLA In construing a statute more especially the ancient statute the court may look at the surrounding circumstances when the statute was enacted
In Halsbury s Laws of England Fourth Edition Vol
44 paragraph 898 it is observed that the construction of ancient statutes may be eludicated by what in the language of the courts is called contemporanea expositio that is by seeing how they were understood at the time when they were passed Undoubtedly this doctrine cannot be applied to modern statutes or indeed to any statute whose meaning appears to the court to be plain and unambiguous
At any rate one can justifiably say that MLA could not be comprehended in any of the clauses of Sec 21 to be a public servant when the Indian Penal Code was enacted in 1860
529 The next stage in the historical evolution of the law with regard to corrupt actions of members of public bodies is the one to be found in a Bill introduced in 1925 called Legislative Bodies Corrupt Practices Act 1925
This Bill was introduced to give effect to the recommendations of the Reforms Enquiry Committee known as Mudiman Committee
In the book Evolution of Parliamentary Privileges  by Shri SK Nag the author traced the steps which led to the introduction of the Bill
In the statement of objects and reasons accompanying the Bill it was stated that the corrupt influencing of votes of members of the legislature by bribery intimidation and like should be made penal offences under the ordinary criminal law and para 124 indicates that this recommendation was a unanimous recommendation of the Committee as a whole
Then comes the more important statement which may be extracted The tender of a bribe to or the receiving of a bribe by a member of a legislature in India as an inducement for him to act in a particular manner as a member of the legislature is not at present an offence
 The Bill sought to fill in the lacuna
It thus follows that till 1925 it was clearly understood that the MLA as the holder of that office which must have come into existence by the time under the Government of India Act 1919 was not a public servant falling in any of the clauses of Sec 21 and this lacuna was sought to be remedied by introducing Chapter 9 B bearing the heading of offences by or relating to members of Legislature Bodies 
The dictionary clause in the Bill would have included MLA in the expression Member of Legislative Bodies
The object of the Bill was to provide for punishment of corrupt practice by or relating to members of Legislative Bodies constituted under the Government of India Act
This was to be passed by the Central Legislature
It was an abortive attempt by members themselves to be brought within the purview of the penal law
One can write a finale by saying that the Bill was not enacted into law
That is the second stage in the history of evolution
Before we proceed further in the journey it is necessary to take note of one intermediate stage to which our attention was not drawn during the arguments
In Prevention of corruption Act 1947 by Sethi and Anand at page 50 it is mentioned that till Criminal Law Amendment Act 1958 Act No II of 1958 was put on the statute book Sec
21 of the IPC consisted only of eleven clauses
Clause 12 530 was introduced by the aforementioned Act and it read Every officer in the service or pay of a local authority or of a Corporation engaged in any trade or industry which is established by a Central Provincial or state Act or of a Government Company as defined in Sec
617 of the 
Obviously as incorporated clause 12 would not comprehend MLA and cl 9 as it stood till then could not have comprehended him as would be presently pointed out
12 introduced by Act II of 1958 is re enacted as cl12 b and it is nobody s case that MLA is covered in cl
12 b
The next stage of development ma now be noticed
While participating in the debate on the demand
for grants for the Ministry of Home affairs in June 1962 some members of the Lok Sabha specifically referred to the growing menace of corruption in administration
In reply to the debate the then Home Minister suggested that some Members of Parliament and if possible some other public men do sit with the officers in order to review the problem of corruption and make suggestions
Pursuant to this announcement a Committee chaired by Shri KSanthanam MP was appointed with nine specific terms of reference which inter alia included to suggest changes which would ensure speedy trial of cases of bribery corruption and criminal misconduct and make the law otherwise more effective 
This Committee submitted its report on March 31 1964
While examining the fourth term of reference extracted hereinabove the Committee in Section 7 of its report considered the question of proposed amendment to Indian Penal Code
The Committee focussed its attention on the definition of public servant  in Sec
Paragraph 76 is most important for the present purpose
It reads as under 76 Section 21 defines public servant  Twelve categories of public servants have been mentioned but the present definition requires to be enlarged
The ninth category describes a large variety of officers charged with the performance of different kinds of duties relating to pecuniary interests of the State
The last sentence of this category namely every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty should be put as a general definition
After the word government he towards local authority public corporation or government company should be added  The words engaged in any trade or industry may also be deleted from the twelfth clause of Section 21 as these words 531 have a restrictive
effect
It should also be made clear that all Ministers Ministers of State Deputy Ministers Parliamentary Secretaries and members of local authorities come under the definition of public servant  A further category should be added to included all persons discharging adjudicatory functions under any Union or State Law for the time being in force
We also consider it necessary to include the following categories within the definition of the term public servant  President Secretary and all members of Managing Committee of a registered Co operative Society Office bearers and employees of educational social religious and other institutions in whatever manner established which receive aid in any form from the Central or State Government
This recommendation led to three important amendments in cls
3 9 and 12 of Sec 21
The unamended clauses and the effect of the amendment in 1964 must be brought out in sharp contrast so as to appreciate the change made and its effect on the language employed
Clause as they stood prior to Amended by the 1964 the 1964 Amendment Amendment
Third Every Judge
Third Every Judge in including any person empo wered by law to discharge whether by himself or as a member of any body of per sons any adjudicatory functions Ninth Every officer whose duty Ninth Every officer it is as such officer to take whose duty it is as such receive keep or expend any officer to take receive property of the Government keep or expend any property or to make any survey on behalf of the Government assessment or contract on or to make any survey as behalf of the Government or to sessment or contract on be execute any revenue process half of the Government or to or to report on any matter affec 532 ting the pecuniary interest of execute any revenue process the Government or to make or to investigate or to authenticate or keep any docu report on any matter affec ment relating to the pecuniary ting the pecuniary interest interest of the Government of the Government or make or to prevent he infraction of authenticate or keep any any law for the protection of document relating to the of the pecuniary interests of pecuniary interests of the the Government and every Government or to prevent officer in the service or pay the infraction of any law of the Government or remunerat for the protection of the ed by fees or commission for pecuniary interest of the performance of any public Government
Underlining ours Twelfth Every officer in the Twelfth Every person service or pay of a local auth a in the service or pay of ority or of a corporation the Government or remune engaged in any trade or indust rated by fees or commission ry which is established by a for the performance of any Central Provincial or State public duty by the Govern Act or of a Government Company ment as defined in section 617 of the 
b in the service or pay of local authority a corpora tion established by or under Central Provincial or State Act or a Government Com pany as defined in section 617 of the 
A bare comparison of the two cls
9 and 12 would reveal the change brought by the Amending Act 40 of 1964
The last part underlined portion in the unamended cl
9 every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty  has been severed from the 9th clause and incorporated as an independent clause 12 a
The original clause 12 was deleted and has been re enacted as cl
12 b with minor modifications
This history of development is noteworthy for a very compelling reason to be presently mentioned
533 discretionary power and this included Minister both Cabinet and State Deputy Ministers and parliamentary Secretaries
MLAs were not considered holding political offices capable of abuse of power
The Committee recommended amendment of the definition of the expression public servant in Sec
21 IPC so as to include Ministers of all rank of Central and State level and Parliamentary Secretaries in the definition of public servant 
The Committee did not recommend that the proposed amendment should comprehend MLA The Committee separately dealt with the MLAs in paragraph 114 in Sec
11 of the Report 
After stating that next to the Minister the integrity of Members of Parliament and of legislatures in the State will be a great factor in creating a favourable social climate against corruption
It is desirable that a Code of Conduct for legislators embodying these and other principles should be framed by a special committee of representatives of Parliament and the legislatures nominated by the Speakers and Chairman
This Code should be formally approved by resolutions of Parliament and the legislatures and any infringement of the Code should be treated as a breach of privilege to be inquired into by the Committee of privileges and if a breach is established action including termination of membership may be taken
Necessary snactions for enforcing the Code of Conduct should also be brought into existence
The Government minutely examined the Report
The recommendations of the Committee which were accepted by the Government led to the introducing of The Anti Corruption Laws Amendment Bill 1964 Bill No 67 of 1964 in the Parliament
The salient features of the Bill worth noticing are that cl
3 of Sec
21 was proposed to be amended as recommended with minor structural change
9 of Sec 21 was dissected as recommended and its last part and every officer in the service are pay of the Government or remunerated by fees or commission for the performance of any public duty  was detached and re enacted as cl
12 a and the original cl
12 was renumbered as Cl
12 b with slight modification
This would imply that no attempt was made to bring in MLA within the conspectus of clause in Sec
so as to make him public servant
The position of the Minister was slightly fluid but a clear picture emerged during the debate on the Bill in the Lok Sabha
Mr Hathi Minister incharge while piloting the Bill on November 7 1964 amongst others stated that the will not deal with those recommendations which had not been accepted by the Government but would explain them later if any point is raised in that behalf See Lok Sabha Debates Third 534 that he will not deal with those recommendations which had not been accepted by the Government but would explain them later if any point is raised in that behalf
See Lok Sabha Debates Third Series Vol
XXXV Col 245 While replying to the debate Mr Halhi stated that the code of conduct has already been evolved for Ministers because the recommendation of Santhanam Committee for including Ministers of all ranks and Parliamentary Secretaries in the definition of public servant  was not accepted by the Government
But there is an interesting caveat to this statement to which we would presently revert He further stated that the specific recommendations about the definition public servant  to include Ministers has not been accepted and included in the Bill because Ministers are not merely public servants but they have a greater moral and social responsibility towards the people
Later on in the debate it was conceded that the Minister is already included in the definition of public servant  even before the proposed amendment in view of the decision of the Supreme Court in Shiv Bahadur Singh s case in which Minister was held to be a public servant
It was further stated that in view of this judgment the Government was advised that the recommendation of the Santhanam Committee for inclusion specifically of Ministers of all rank and Parliamentary Secretaries was redundant
Sec Lok Sabha Debates Third Series Vol
35 cols
729 and 731
Whatever that may be the conclusion is inescapable that till 1964 at any rate MLA was not comprehended in the definition of public servant  in Sec 21
And the Santhanam Committee did not recommend its inclusion in the definition of public servant in Sec 21
Bill No 47 of 1964 was enacted as Act 40 of 1964
Now if prior to the enactment of Act 40 of 1964 MLA was not comprehended as a public servant in Sec 21 the next question is did the amendment make any difference in his position
The amendment keeps the law virtually unaltered
Last part of cl9 was enacted as cl 12 a
If MLA was not comprehended in clause 9 before its amendment and dissection it would make no difference in the meaning of law if a portion of cl 7 is re enacted as cl 12 a
It must follow as a necessary corollary that the amendment of Cls
9 and 12 by Amending Act 40 of 1964 did not bring about any change in the interpretation of cl
9 and cl
12a after the amendment of 1964
In this connection it would be advantageous to refer to GA Monterio vs The State of Ajmer1 followed and approved in The State of Ajmer vs Shiji Lal2 in both of 535 which cl
9 as it stood prior to its amendment came up for construction
In the first mentioned case the accused was a chaser in the Railway Carriage Workshop at Ajmer
He was held to be an officer in the pay of the Government comprehended in the last part of cl
9 of Sec 21 as it then stood
In the second case accused was a teacher in a railway school at Phulera
His contention had found favour with the learned Judicial Commissioner but in reaching the conclusion he appeared to have ignored the last part of cl9 prior to its amendment in 1964
In the appeal by the State this Court held that the case of the accused would be covered by the last part of cl
9 because the accused fulfilled the twin conditions of either being in the service or pay of the Government and was entrusted with the performance of a public duty
It may also be mentioned that the last three words by the Government  found in cl
12 a after the amendment were not there in the last part of cl 9 
The question was whether addition of words by the Government  made any difference in the interpretation of last part of cl
9 which is substantially re enacted as cl
12a
The Gujarat High Court in Manshanker Prabhashanker Dwivedi and Anr
vs The State of Gujarat 1 trace the history of amendment that payment by the Government was implicit in cl
9 through the words by the Government  were not there and were added to cl
12a after re enacting the last part of cl
9 as 12a
This becomes clear from the decision of this Court in the appeal against the judgment of the Gujarat High Court in the State of Gujarat vs Manshanker Prabhashnker Dwivedi
2 The accused in that case was charged for having committed offences under Sec
161 IPC and Sec
5 2 of the 1947 Act
The facts alleged were that the accused respondent before this Court was an examiner appointed by the University for the first year BSc
examination
He was alleged to have accepted gratification of Rs 500 other than legal remuneration for showing favour to a candidate by giving him more marks than he deserved in the Physics practical examination
The learned special Judge convicted him
In the appeal the High Court after taking note of cl 9 and cl 12 of Sec 21 prior to their amendment by Act 40 of 1964 held that for cl 9 to apply the person should be an officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty and that such pay or remuneration or commission must come from the Government 
It was further held that the context of the whole of the Ninth Clause as 536 remuneration or in respect of the performance of public duty  It was further held that the use of the word officer  read in the context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by Government
The High Court further held that the amendment made in 1964 and in particular the addition of the words by the Government  in sub cla of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration After extraction these reasons which appealed to the High Court this Court observed than the reasoning of the High Court does not suffer fro many infirmity
It would transpire that payment by the Government was implied without the use of the expression by the Government in cl 9
The words by the Government  are added in cl
12a amended
This apparently does not make any difference
It would therefore necessarily follow that the amendment of cls 9 and 12 did not bring about any change in the coverage and construction of the two clauses prior to and since their amendment
If that be so it would follow as necessary corollary that if MLA was not a public servant with in the meaning of the expression prior to Act 40 of 1964 since the Act the law legal effect and on average of expression public servant remains unaltered and hence MLA is not a public servant  comprehended in cl
12a
Thus looking to the history and evolution of Sec 21 as traced it is clear that till 1964 MLA could not have been conceivably comprehended in expression public servant  and the law did not undergo any change since the amendment
On the contrary the recommendation of the Santhanam Committee which recommended inclusion of Ministers and Parliamentary Secretaries but not of MLA separately recommended a code of conduct for MLA for seving them from the spectre of corruption would clearly and unmistakably show that till 1964 MLA was not comprehended in expression public servant  in Sec
21 IPC and the amendment by Amending Act 40 of 1964 did not bring about the slightest change in this behalf concerning the position of MLA Therefor apart from anything else on historical evolution of Sec
21 adopted as an external aid to construction one can confidently say that MLA was not and is not a public servant  within the meaning of the expression in any of the clauses of Sec
21 IPC
Assuming that it would not be legally sound or correct according to well accepted canon of construction of a statute to construe Sec
21 12 a by mere historical evolution of the section and the constitutionally valid approach would be to look at the language em 12 a by mere historical evolution of the section and the constitutionally valid approach would be to look at the language employed in the section and upon its true construction ascertain whether MLA is a public servant within the meaning of the expression in that sub clause
The learned special Judge held that MLA is a public servant because he is either in the pay of the Government or is remunerated by fees for the performance of any public duty by the Government
A person would be a public servant under cl
12 a if i he is in the service of the Government or ii he is in the pay of the Government or iii he is remunerated by fees or commission for the performance of any public duty by the Government
On behalf of the complainant appellant it was contended that in order to make a person a public servant on the ground that he is in the pay of the Government there must exist a master servant relationship or a command obedience relationship and if these elements are absent even if a person is in the pay of the Government he would not be a public servant
On behalf of the respondent it was countered asserting that the concept of master servant relationship or command obedience relationship is comprehended in the first part of cl
12 a which provides that every person in the service of the Government would be a public servant
It was urged that if even for being comprehended in the second part of the clause namely a person would be a public servant if he is in the pay of the Government their ought to be a master servant or command obedience relationship the Legislature would be guilty of tautology and the disjunctive or  would lose all significance
The use of the expression or  in the context in which it is found in cl
12a does appear to be a disjunctive
Read in this manner there are three independent categories comprehended in cl
12 a and if a person falls in any one of them he would be a public servant
The three categories are as held by the learned special Judge i a person in the service of the Government ii a person in the pay of the Government and iii a person remunerated by fees or commission for the performance of any public duty the Government
One can be in the service of the Government and may be paid for the same
One can be in the pay of the Government without being in the service of the Government in the sense of manifesting master servant or command obedience relationship
The use of the expression or  does appear to us to be a disjunctive as contended on behalf of the respondent
Depending upon the context 538 or  may be read and  but the court would not do it unless it is so obliged because or  does not generally mean and  and and  does not generally mean or 
See Green vs Premier Glyrhonwy State Company Ltd 1 Babu Manmohan Das  Ors
vs Bishun Das 2 Ramta Prasad Aggarwal etc
Executive Engineer Balladgarh  Anr3 and several other which we consider it unnecessary to enumerate here
Once it is accepted that a person in the pay of the Government  connotes a specific and independent category of public servant other than  a person in the service of the Government  does not inhere a master servant or command obedience relationship between the Government as the payer and the public servant as the payee no part of the section is rendered superfluous
Each part will receive its own construction
We therefore consider it unnecessary to refer to those decisions which were cited on behalf of the respondent that the correct canon of construction to be adopted in such a situation is that effect must be given if possible to the words used in the statute for the Legislature is deemed not to waste its words or to say anything in vain
What then is the true interpretation of the expression in the pay of the Government 
In other words is MLA a person In the pay of the Government  so as to be public servant within the meaning of the expression in Sec
21 12 a
The expressions that call for construction are i in the pay of  and ii Government 
article 195 of the Constitution provides that  Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined by the Legislature of the State by law and until provision in that respect is so made salaries and allowances at such rates and upon such conditions as were immediately before the commencement of the Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province  Armed with this power the Maharashtra State Legislative Assembly has enacted The Maharashtra Legislature Members  Salaries and Allowances Act 1956 Bombay Act XLIX of 1956 
Sec 3 1 provides that there shall be paid to each member during the whole of his term of office a salary at the 539 rate of Rs 450 per month and sub sec
2 provides that there shall be paid to each Member during the whole of his term of office per month a sum of Rs 400 as a consolidated allowance for all matters not specifically provided or by under the provision of the Act 
Sec 4 provides for daily allowances to be paid to Members
5 provides for travelling allowance to be paid to Members
5AC provides for a free travel by railway and steamer by a Member subject to the conditions therein prescribed
Members are also eligible for some allowances as specified in various sections of the Act
The Maharashtra Legislature Members Pensions Act 1976 makes provision for payment of pension with effect from April 1 1981 at the rate of Rs 300 per month to every person who has served as a Member of the State Legislature for a term of 5 years subject to other conditions prescribed in the section
There is a similar Act which makes provisions for salaries and allowances of the Ministers of Maharashtra State
Undoubtedly MLA receives a salary and allowances in his capacity as MLA
Does it make him a person in the pay of the Government  Our attention has been drawn to the meaning of the word pay  in different dictionaries and to the decision in M Karunanidhi vs Union of India1 where after ascertaining the meaning of the word pay  given in different dictionaries the Court observed that the expression in the pay of  does not signify master servant relationship
The word pay  standing by itself in open to various shades of meaning and when the word is used in a phrase in the pay of 
it is more likely to have a different connotation than when standing by itself
Before referring to the various shades of meaning set out in the dictionaries it would be advisable to caution ourselves against an unrestricted reference to dictionaries
Standard dictionaries as a rule give in respect of each woad as meanings in which the word has either been used or it is likely to be used in different contexts and connections
While it may be permissible to refer to dictionaries to find out the meaning in which a word is capable of being used or understood in common parlance the well known canon of construction should not even for a minute be overlooked that the meaning of the words and expressions used in a statute ordinarily take their colour from the context in which they appear
In Dy
Chief Controller of Imports  Exports New Delhi vs RT Kosalam  Ors2 this Court observed as under 540 It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological dissection and after separating words from their context to give each word some particular definition given by lexicographers and then to reconstruct the instruments upon the basis of those definitions
What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context the nature of the subject matter the purpose of the intention of the author and the effect of giving to them one or the other permissible me aning on the object to be achieved
Words are after all used merely as a vehicle to convey the idea of the speaker or the writer and the words have naturally therefore to be so construed as to fit in with the idea which emerges on a consideration of the entire context
Each word is but a symbol which may stand for one or a number of objects
The context in which a word conveying different shades of meanings is used is of importance in determining the precise sense which fits in with the context as intended to be conveyed by the author
In State Bank of India vs N Sundara Money Krishna Iyer J speaking for the Court observed in his inimitable style that dictionaries are not dictators of statutory construction where the benignant mood of a law may furnish a different denotation 
With this caution we may briefly refer to the meaning of the expression pay  and in the pay of  given by different dictionaries
As far as the expression pay  is concerned a Constitution Bench of this Court in Karunanidhi s case referred to various dictionaries and concluded that the word ordinarily means salary compensation wages or any amount of money paid to the person who is described as in the pay of the payer 
Serious exception was taken on behalf of the appellant that no canon of construction would permit picking out shades of meaning of word pay  and then read the phrase in the pay of  as synonymous with the word pay 
On the other hand it was asserted that the point is concluded by the observation of the Constitution Bench that so far as the second limb of the clause in the pay of the Government  is concerned that appears to be of a much wider amplitude so as to include within its ambit even a public servant who 541 pay of the other person and yet there may not be a master servant relationship between them
The court did not ascertain the meaning ascribed to phrase in the pay of  in different dictionaries
The phrase in the pay of  would ordinarily import the element of employment or paid employment or employed and paid by the employer
In Concise Oxford Dictionary 7th edition at page 753 the meaning assigned to the expression in the pay of  is in the employment of 
In New Collins Concise English Dictionary at page 831 in the pay of carries one meaning as one in paid employment 
In Websters New World Dictionary the phrase in the pay of  carries the meaning employed and paid by 
Relying on all these shades of meaning it was urged that the phrase in the pay of  does necessarily import the element of master servant relationship and its absence cannot be countenanced
It was submitted even if A is paid by B a sum styled as pay unless B is servant of A it cannot be said that B is in the pay of A
We see force in this submission
However it is not implicit in the expression in the pay of  that there ought to exist a master servant relationship between payer and payer
One can be in the pay of another without being in employment or service of the other
We are not inclined to accept the submission that in the pay of  must in the context imply master servant relationship for the obvious reason that the court has to construe the phrase in the pay of  in its setting where it is preceded by the expression in the service of the Government  and succeeded by the expression remunerated by fees or commission for the performance of any public duty by the Government 
The setting and the context are very relevant for ascertaining the true meaning of the expression
In order to avoid the charge of tautology the phrase in the pay of the Government  in cl
12 a may comprehend a situation that the person may be in the pay of the Government without being in the employment of the Government or without there being a master servant relationship between the person receiving the pay and the Government as payer
It was however contended that the question whether a person in the pay of the Government  is ipso facto a public servant is no more res integra and concluded by the decision of the Constitution Bench in Karunanidhi s case In that case before adverting to the dictionary meaning of the expression pay  the Constitution Bench speaking through Fazal Ali J observed as under at page 282 We are of the opinion that so far as the second limb in the pay of the Governments  is concerned that appears to be of 542 We are of the opinion that so far as the second limb in the pay of the Government  is concerned that appears to be of a much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master
The Court further observed that the expression in the pay of  connote that a person is getting salary compensation wages or any amount of money
This by itself however does not lead to the inference that a relationship of master and servant must necessarily exist in all cases where a person is paid salary
We are also of the opinion that the phrase in the pay of the Government  does not import of necessity a master servant relationship
It is perfectly possible to say that a person can be in the pay of the Government if he is paid in consideration of discharging an assignment entrusted to him by the Government without there necessarily being a master servant relationship between them
It is not unusual in common parlance to speak of a person being in the pay of another if he is paid for acting at the behest or according to the desire of the other without the other being his master and he the servant that is to say without the control over the manner of doing the work which a master servant relationship implies
It is such a category in addition to the one in the service of the Government  that is sought to be comprehended in cl
12a
In respect of the extracted observation of the Constitution Bench there is no attempt to distinguish the decision in Karunanidhi s case and therefore it is not necessity to consider the decisions cited in support of the submission that a judgment of the Supreme Court especially of the Constitution Bench cannot be distinguished lightly and is binding on us and unless questions of fundamental importance to national life are involved need not be by us
We must however point out that the ratio of the decision in Karunanidhi s case is not what is extracted hereinbefore but the ratio is to be found at page 290 where the Constitution Bench held the Chief Minister to be a public servant as comprehended in cl
12s of Sec 21 on the finding 1
That a Minister is appointed or dismissed by the Governor and is therefore subordinate to him whatever be the nature and status of his constitutional functions
That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him
That the said salary is paid to the Chief Minister or the Minister from the Government funds
543 It would appear at glance that no argument was advanced and none has been examined by the Constitution Bench bearing on the interpretation of the expression Government  in cl
12a
It was assumed that salary and allowances paid to the Chief Minister are by Government
What does expression Government  in the clause connote was not even examined
And it is on the aforementioned finding that the Chief Minister was held to be a public servant but that does not conclude the matter
This is not the end of the matter
The question may be posed thus Even if MLA receives salary and allowances under the relevant statute is he in the pay of the Government  In other words what does the expression Government  connote There is a short and a long answer to the problem
17 IPC provides that the word Government  denotes the Central Government or the Government of a State 
7 IPC provides that ever expression which is explained in any part of the Code is used in every part of the Code in conformity with the explanation 
Let it be noted that unlike the modern statute Sec 7 does not provide unless the context otherwise indicate  a phrase that prefaces the dictionary clauses of a modern statute
Therefore the expression Government  in Sec 21 12a must either mean the Central Government or the Government of a State
Substituting the explanation the relevant portion of Sec 21 12 a would read thus Every person in the pay of the Central Government or the Government of a State or remunerated by fees or commission for the performance of any public duty by the Central Government or the Government of a State 
At any rate the Central Government is out of consideration
Therefore the question boils down to this whether MLA is in the pay of the Government of a State or is remunerated by fees for the performance of any public duty by the Government of a State  In the debate between the Presidential form and Parliamentary form of democracy during the early days of the Constituent Assembly the balance tilted in favour of Parliamentary form of Government
Mr K M Munshi one of the members of the Drafting Committee spoke in this connection as under We must not forget a very important fact that during the last hundred years Indian public life has largely drawn upon the traditions of British Constitutional Law
Most of us have 544 looked up to the British model as the best
For the last thirty or forty years some hind of responsibility has been introduced in the governance of the country
Our constitutional traditions have become parliamentary and we have now all our Provinces functioning more or less on the British model
 In Rai Sahib Ram Jawaya Kapur  Ors
vs The State of Punjab a Constitution Bench of this Court observed as under Our Constitution though federal in its structure is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State
It was further observed that in the Indian Constitution executive as in England and the Council of Ministers we have the same system of parliamentary consisting as it does of the members of the legislature is like the British Cabinet a hyphen which joins a buckle which fastens the legislative part of the State to the executive part
In Shamsher Singh  Anr
vs State of Punjab a seven Judges Bench unanimously overruled the decision in Sardari Lal vs Union of India and Ors
and held that our Constitution embodies generally the Parliamentary or Cabinet system of Government of the British Model both for the Union and the States 
This view has not been departed from
Now in parliamentary form of Government modelled on British model the executive legislature and judicial powers are in the main entrusted to separate instruments of the State
It is not for a moment suggested that there is strict or water fight division of powers but the functions are certainly divided
In Halsbury s Laws of England Fourth Edition Vol 8 para 813 separation of executive legislative and judicial powers in the Westminster Model have been adverted to
It reads as under It is clear that the powers of government are divided
The executive legislative and judicial powers are in the main 545 entrusted to separate instruments of the State and local government is further administered separately
Thus the original concentration of power in the Sovereign no longer exists in the eighteenth century this division of the powers of government seemed to be such an essential characteristic of the English Constitution that it was made the basis for the doctrine of separation of powers
This doctrine which is to the effect that in a nation which has political liberty as the direct object of its constitution on one person or body of persons ought to be allowed to control the legislative executive and judicial powers or any two of them has never in its strict form corresponded with the facts of English government mainly because although the functions and powers of government are largely separated the membership of the separate instruments of state overlap
Only in one aspect of the constitution can it be said that the doctrine is strictly adhered to namely that by tradition convention and law the judiciary is insulated from political matters
Parliament that is the Legislature exercises control over the executive branch of the Government because it is a postulate of Parliamentary form of Government that Executive is responsible to the Legislature
In other words the Government of the country is controlled by a ministry and Cabinet chosen by the electorate which while remaining responsible to the electorate is responsible directly to the Legislature and such effective means of exercising control is that any expense from
Consolidated Fund of the State must have been earlier placed before the Legislature
In Halsbury s Laws of England Fourth Edition Vol
34 para 1005 it is stated that Parliament exercises control over the actions of the executive government and the administration of the laws it has enacted in various ways one such being by the doctrine of the constitution by which supply is granted annually by the House of Commons and must receive legislative sanction each year and the supply granted must be appropriated to the particular purposes for which it has been granted
It may also be noticed that the staff of the House of Commons is appointed by the House of Commons Commission comprising the Speaker the Leader of the House of the Commons a member of the House nominated by the Leader of the opposition and three other members appointed by the House
This Commission is charged with a duty to determine the number and remuneration and other terms and conditions of service
This Commission is also responsible for laying before 546 the House an estimate of the expenses of the House departments and of any other expenses incurred for the service of the House of Commons
ibid para 1155
Let us turn to relevant provisions of the Constitution
Part VI of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution  Chapter III in Part VI provides for State Legislature
Every State is to have a Legislature which shall consist of the Governor and it can be unicameral or bicameral as the case may be Where the State has a unicameral legislature the assembly is called Legislative Assembly
article 170 provides for members of the Legislative Assembly being chosen by direct election from territorial constituencies in the State
articles 178 to 186 provide for officers of the State Legislatures such as the Speaker and Deputy Speaker of the Legislative Assembly and Chairman and Deputy Chairman of Legislative Council as the case may be their powers functions and their either vacating the office or removal from the office
article 187 1 provides that the House or each House of the Legislature of a State shall have a separate secretarial staff 
Marginal note of the article is Secretariat of State Legislature 
Sub art2 of article 187 provides that the Legislature of a State may by law regulate the recruitment and the conditions of service of persons appointed to the secretarial staff of the House or Houses of the Legislature of the State 
article 266 obliges the State to set up its Consolidated Fund
article 203 prescribes the procedure with respect to estimates
The estimates as relate to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly but the discussion in the Legislature is permissible thereon
However so much of the said
estimates as relate to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly and the Legislative Assembly shall have power to assent or to refuse to assent to any demand or to assent to any demand subject to a reduction of the amount specified therein
In other words Legislative Assembly has complete power of purse
article 204 casts an obligation to introduce a Bill to provide for appropriation out of the Consolidated Fund of the State of all moneys required to meet a the grants so made by the Assembly and b the expenditure charged on the Consolidated Fund of the State but not exceeding in any case the amount shown in the statement previously laid before the House or Houses
A conspectus of these provisions clearly indicate that the Legislature enjoys the power of 547 purse
Even with regard to expenses charged on the Consolidated Fund of the State to be set up under article 266 an appropriation bill has to be moved and adopted undoubtedly the same would be non votable
And it is not disputed that salaries and allowances payable to MLA are not charged on the Consolidated Fund of the State
This probably is an emulation of the situation in England where salary and allowances of the members of the Parliament are not charged on the Consolidated Fund
As a necessary corollary it would be a votable item
There thus is a broad division of functions such as executive legislative and judicial in our Constitution
The Legislature lays down the broad policy and has the power of purse
The executive executes the policy and spends from the Consolidated Fund of the State what Legislature has sanctioned
The Legislative Assembly enacted the Act enabling to pay to its members salary and allowances
And the members vote the grant and pay themselves
In this background even if there is an officer to disburse this payment or that a pay bill has to be drawn up are not such factors being decisive of the matter
That is merely a mode of payment but the MLAs
by a vote retained the fund earmarked for purposes of disbursal for pay and allowances payable to them under the relevant statute
Therefore even though MLA receives pay and allowances he is not in the pay of the State Government because Legislature of a State cannot be comprehended in the expression State Government 
This becomes further clear from the provision contained in article 12 of the Constitution which provides that for purposes of Part III unless the context otherwise requires the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India 
The expression Government and Legislature  two separate entities are sought to be included in the expression State  which would mean that otherwise they are distinct and separate entities
This conclusion is further reinforced by the fact that the executive sets up its own secretariat while article 187 provides for a secretarial staff of the Legislature under the control of the Speaker whose terms and conditions of the service will be determined by the Legislature and not by the executive
When all these aspects are pieced together the expression Government  in Sec
21 12a clearly denotes the executive and not the Legislature
MLA is certainly not in the pay of the executive
Therefore 548 the conclusion is inescapable that even though MLA receives pay and allowances he can not be said to be in the pay of the Government ie the executive
This conclusion would govern also the third part of cl 12a ie remunerated by fees for performance of any public duty by the Government 
In other words MLA is not remunerated by fees paid by the Government ie the executive
It was also contended that MLA is not performing any public duty
It is not necessary to examine this aspect because it would be rather difficult to accept an undly vide submission that MLA is not performing any public duty
However it is unquestionable that he is not performing any public duty either directed by the Government or for the Government
He no doubt performs public duties cast on him by the Constitutional and his electorate
He thus discharges constitutional functions for which he is remunerated by fees under the Constitution and not by the Executive
It was further contended that on the analogy of the decision in His Majesty the King vs Boston  Ors  MLA would be a public servant
In Boston s case the allegation was that Harrison and Mitchel more paid to defendant Boston in his official capacity as a Member of the Legislative Assembly of New South Wales and the latter corruptly accepted in that capacity as inducement to him in violation of his official duty to use his position as such member a to secure the acquisition by the Government of the State of New South Wales of certain estates and the payment for such estates out of the public funds of the State and b to put pressure upon the Minister for Lands and other officers of the Crown to acquire and pay for such estates
The contention was that the agreement between the defendants might have been to pay money to Boston to induce him to use his position exclusively outside Parliament and not by vote or speech in the Assembly and that the transaction in connection with which he was to use his position to put pressure on the Minister might consistently with the information be one which would never come before Parliament and which in his opinion and in the opinion of those who paid him was highly beneficial to the State that such an agreement would not amount to a criminal offence and that consequently the information is bad
Negativing this contention it was held that it is settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy
It was further 549 held by the majority that the payment of money to and the receipt of money by a member of Parliament to induce him to use his official position whether inside or outside Parliament for the purpose of influencing or putting pressure on a Minister or other officer of the Crown to enter into or carry out a transaction involving payment of money out of the public funds are acts tending to the public mischief and an agreement or combination to do such acts amounts to a criminal offence
The question has been examined in the light of the settled law that an agreement or combination to do an act which tends to produce a public mischief amounts to a criminal conspiracy
Isaacs and Rich JJ posited the question how far a member of the Legislative Assembly of New South
Wales can without incurring any real personal responsibility that is other than political rejection make his public position the subject of profitable traffic by engaging in departmental intervention on behalf of individuals in return for private pecuniary consideration to himself  The concurring judgment examined the general position of a member of Parliament and then proceeded to examine the special provisions of the relevant clause
On this point it was concluded that the fundamental obligation which is the key to this case is the duty to serve and in serving to act with fidelity and with a simplemindedness for the welfare of the community
It was further observed that a member of Parliament is therefore in the highest sense a servant of the State his duties are those appertaining to the position he fills a position of no transient or temporary existence a position forming a recognized place in the constitutional machinery of government
It was also held that he holds an office
In the third concurring judgment of Higgins J while conceding that the member of Parliament has to discharge a duty in which the public is interested but after examining provisions of the public Service Acts it Was held that he is not public officer within the meaning of that Act because he is not required to obey the commands of the King or of the departmental heads
It was however concluded that as a member of Parliament he holds a fiduciary relation towards the public and that is enough
The minority judgment of Gavan Duffy and Starke JJ
clearly proceeds on their holding that a member of Legislative Assembly of New South Wales is not the holder of a public office within the meaning of the common law and even if he could be regarded as the holder of such an office the acts charged as intended to be done by the defendant Boston however improper they may be would not be malversation in his office or acts done in his office or acts done in his office unless they were done in the discharge of his legislative functions
As we are concerned with a legislative enactment Sec
2112a this decision based on the 550 concept of common law and some of the statutes as prevailing in Australia would not be very helpful
It may be mentioned while comparing MLA and MP in India with MP in UK that the MP in UK is neither covered by the Prevention of Corruption Act 1906 nor the Prevention of Corruption Act 1916
It may also be mentioned that The Public Bodies Corrupt Practices Act 1889 does not cover MP in UK The acceptance by any member of either House of Parliament of a bribe to influence him in his conduct as such member or of any fees compensation or reward in connection with the promotion of or opposition to any bill resolution matter or thing submitted or intended to be submitted to the House or any committee thereof is a breach of privilege   Attempts to bring M P in UK either under the provisions of the Prevention of Corruption Act or the public Bodies Corrupt Practices Act have not met with success
Even such modicum of decency in public life as disclosing relevant pecuniary interest or benefit of whatever nature whether direct or indirect that he may have had or may be expecting to have while participating in a debate or proceeding in House by MP in UK was stoutly resisted in 1974
But Paulson Affair stirred many and Royal Commission on Corruption in Public Life headed by Lord Justice Salmon was set up
The Commission inter alia recommended in 1976 that MPs
should be brought within the scope of the corruption laws regarding their actions inside as well outside Parliament
No follow up legislative action appears to have been taken since then
If MLA is not in the pay of the Government in the sense of Executive government or is not remunerated by fees for performance of any public duty by the Executive Government certainly he would not be comprehended in the expression public servant  within the meaning of the expression in cl
12 a
He is thus not a public servant within the meaning of the expression in cl12 a
This conclusion reinforces the earlier conclusion reached by us after examining the historical evolution of cl
12 a
Mr Singhvi however strenuously contended that MLA would be comprehended in cl
3 or cl
7 of Sec
21 IPC to be a public servant He went so far as to suggest that his emphasis would have been more on cl
3 comparatively and not on cl
12 a
Therefore it may now
be examined whether MLA is comprehended either in cl
3 or cl
7 of Sec
21 IPC
551 Re e Cl3 of Sec
21 as it at present stands takes within its purview every Judge including any person empowered by law to discharge whether by himself or as a member of any body of persons any adjudicatory functions
Prior to its amendment by Act 40 of 1964 the cl
3 read simply Every judge 
3 was amended to read as it at present stands pursuant to the recommendations of the Santhanam Committee
In Para 76 of the Report it was recommended that a  further category should be added to include all persons discharging adjudicatory functions under any Union of State Law for the time being in force 
With this end in view the Committee recommended that cl
3 should read Every Judge including any person entrusted with adjudicatory functions in the course of enforcement of any law for the time being in force 
At the Bill stage the clause was recast so as to give full effect to the recommendation of the Committee and this equally becomes clear from the Statement of objects and Reasons accompanying Bill No 67 of 1964 which when adopted became Act 40 of 1964
In para 2 a of the Statement of objects and Reasons it is stated that the definition of public servant in Sec
21 of the Indian Penal Code is proposed to be amended so as to bring within its purview certain additional categories of persons such as persons performing adjudicatory functions under any law liquidators receivers commissioners etc  If we recall the earlier discussion about the history of evolution of cl 12 a and the entire range of recommendation of the Santhanem Committee it can be confidently said the MLA was never intended to be brought within the conspectus of clauses of Sec 21 so as to clothe him with the status of a public servant
Independent of this historical evolution and focussing attention on the language of cl
3 it is difficult to hold that MLA as a member of a body of persons such as the Legislative Assembly performs any adjudicatory functions empowered by law to discharge that function
In fact Santhanam Committee contemplated covering such officers like liquidators receivers commissioners etc
each of whom is empowered by different statutes to discharge such adjudicatory functions as prescribed by the concerned law
It was however contended that expression Judge  has been defined in Sec
19 IPC to denote not only every person who is officially designated as a Judge but also every person who is empowered by law to give in any legal proceeding civil or criminal a definitive judgment or a judgment which if not appealed against would be definitive or a judgment if confirmed by some other authority would be definitive 552 or who is one of a body of persons which body of persons is empowered by law to give such a judgment and in cl
3 this definition cannot be substituted because it is an inclusive definition which means it is extensive in character
Accepting the position that inclusive definition extends the specific meaning of the expression which it would not otherwise bear it is necessary to determine whether this extension of the expression Judge  is so wide as to cover within its umbrella MLA on the ground that while voting upon a motion for breach of privilege or for contempt of the House he is discharging adjudicatory functions and that he is so empowered by law to do so
When with the permission of the Speaker a motion for breach of privilege is moved in the Legislative Assembly or a motion for taking action for contempt of the House is moved undoubtedly every member of the House has a right to participate and after the motion is debated upon the majority vote is recorded as a decision of the House
Does that make MLA a person as a member of a body persons who discharges adjudicatory functions The definition of expression Judge  comprehends adjudication in any legal proceeding civil or criminal and in which the person as a Judge is empowered to give a definitive judgment
It is difficult to accept the submission that the proceedings before the House either upon a motion for breach of privilege or for contempt is a civil or criminal proceeding as these terms ordinarily connote
A motion for breach of privilege or for contempt of the House is brought before the House when the mover feels that the powers privileges and immunities of the House have been violated
The House has the power to punish for contempt  and the penal jurisdiction of the House is not confined to their own Members nor to offences committed in their presence but extends to all contempts of the Houses whether committed by Members or by persons who are not Members irrespective of whether the offence is committed within the House or beyond its walls 
See Earskine May Parliamentary Practice 20 ed
p 122
This power of commitment is truly described as a key stone of Parliamentary Practice
It was pointed out that the origin of the power which is judicial in its nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice the High Court of Parliament  ibid page 124
It is however difficult to say that a State Legislature functioning under our Constitution can be described as High Court of Legislative Assembly
In blindly tailoring our Constitutional Law to the Parliamentary Practice in UK one is apt to overlook the obvious fact that House of Lords always possessed the judicial power as any Court of Westminster Hall
ibid p 124
In this connection in Special 553 Ref
No 1 of 19641 it was clearly stated that the result of the provision contained in the latter part of article 1943 was not intended to be confer on the State Legislatures in India the status of a superior Court of Record
It was further observed that the House and indeed all Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional back ground does not support the claim that they can be regarded as Court of Record in any sense Undoubtedly the Legislative Assembly in view of the provisions contained in article 1943 has the power to inflict punishment for breach of privilege and for contempt of the House And when a motion is moved complaining breach of privilege or for taking action for the contempt of the House the members would participate in the debate analyse evidence and absence thereof in support of the motion and against the motion and ultimately decide as a body by a democratic process whether the motion is affirmed or rejected
The question is whether this process can be styled as an adjudicatory process discharged by MLA as empowered by law
If the expression law  were to include the Constitution certainly this power is enjoyed by MLA but expression law  ordinarily does not include the Constitution
Art 131 of the Constitution provides that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are consistent with the provision of Part III shall to the extent of inconsistency be void
Sub article
2 imposes a restriction on the legislative power of the State to make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of sub Art 2 shall to the extents of the contravention be void Expression law  as used here would be law other than Constitution
in other words law enacted in exercise of the legislative power
The majority view in IC Golaknath vs State of Punjab1 that amendment of the Constitution is part of the legislative process does not survive as valid any longer because it was admitted that Constitution Twenty Fourth Amendment Act 1971 in so far as it transfers the power to amend the Constitution from the residuary entry or Article 248 of the Constitution to Article 368 is valid
After so saying the trend of discussion in various judgments in HH Keshvnand Bharathi Sripadanaga galavaru vs State of Kerala and another2 shows that when the power amend the Constitution is exercise by Parliament it exercises Constituent power and this is independent of the ordinary 554 legislative process
And this approach is borne out by a reference to the definition of expression Indian law in the General Clauses Act which does not include the Constitution
A passing reference may also be made to the form of oath prescribed for a Judge of the Supreme Court and the Judge of the High Court in the Third Schedule which separately refer to the Constitution and the laws
Participation in a debate on a motion of breach of privilege or for taking action for contempt of the House and voting thereon is a constitutional function discharged by the members and therefore it cannot be said that such adjudicatory function if it can be so styled constitutes adjudicatory function undertaken by MLA as empowered by law
Viewed from this angle it is not necessary to examine the contention that adjudication and a resultant judgment presupposes a lis between persons other than adjudicator and MLA has no lis before him as a body of persons when passing upon the motion for contempt or breach of privilege
Accordingly the submission that the accused would be a public servant within the meaning of the expression in cl
3 of Sec
21 IPC must be rejected
The last limb of the submission was that at any rate the accused would be a public servant within the meaning of cl
7 of Sec
21 IPC which takes within its ambit every person who holds any office by virtue of which he is empowered to place or keep any person in confinement 
This limb of the submission was not placed for consideration of the learned trial Judge
And it has merely to be stated to be rejected
We however did not want to reject it on this narrow ground
Expanding this contention it was urged that MLA is empowered to adjudge a person guilty of breach of privilege or contempt of the House and when prison sentence is imposed to keep him in confinement
Assuming for the purpose of this argument that MLA holds an office is he a person empowered to place or keep any person in confinement
Power to impose punishment is independent of the power to keep a person in confinement
First is the power to impose a prison sentence
but second is the power flowing from the execution of the sentence to place or keep any person in confinement meaning thereby there is an execution of warrant Persons whose duty it is to deprive a person directed to be imprisoned to deprive him of his liberty to remain free and to keep or place him in confinement in due execution of the warrant would be comprehended in cl
It is difficult to accept the submission that MLAs
as a body can keep or place any person in confinement
Reference was however made to some of the passages 555 in Parliamentary Practice by Earskine May 20th Edn
as also to Practice and Procedure of Parliament Third Edition by Kaul and Shakdher p 208
The authors observed at page 208 that each House of the Legislature of State has the power to secure the attendance of persons on matters of privilege and to punish for break of privilege or contempt of the House and commit the offender to custody or prison 
At page 212 it is observed that each House has the power to enforce its orders including the power for its officers to break open the doors of a house for that purpose when necessary and execute its warrants in connection with contempt proceedings 
We fail to see how these observations assist us in understanding the expression empowered to place or keep any person in confinement  Broadly stated the expression comprehends Police and Prison Authorities or those under an obligation by law or by virtue of office to take into custody and keep in confinement any person
In M P Dwivedi s case this Court observed that Seventh and Eighth clauses of Sec
21 deal with persons who perform mainly policing duties
To say that MLA by virtue of his office is performing policing or prison officers  duties would be apart form doing violence to language lowering him in status
Additionally cl
7 does not speak of any adjudicatory function
It appears to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case which may lead to imposition of a prison sentence and a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in confinement
The decisions in Homi D Mistry vs Shree Nafisul Hussan  Ors1
Harendra Nath Barua vs Dev Kanta Barua  Ors 2 and Edward Kelley vs William Carson John Kent  Ors2 hardly shed any light on this aspect
Therefore the submission that MLA would be comprehended in cl
7 of Sec
21 so as to be a public servant must be rejected
Having meticulously examined the submission from diverse angles as presented to us it appears that MLA is not a public servant within the meaning of the expression in cl
12a cl
3 and cl7 of Sec
21 IPC
Re f  g The learned Judge after recording a finding that MLA is a public servant within the comprehension of cl
12a and further recording the finding that as on the date on which the Court 556 was invited to take cognizance the accused was thus a public servant proceeded to examine whether sanction under Sec
6 of the 1947 Act is a pre requisite to taking cognizance of offences enumerated in Sec
6 alleged to have been committed by him
He reached the conclusion that a sanction is necessary before cognizance can be taken
As a corollary he proceeded to investigate and identify which is the sanctioning authority who would be able to give a valid sanction as required by Sec 6 for the prosecution of the accused in his capacity as MLA We have expressed our conclusion that where offences as set out in Sec
6 are alleged to have been committed by a public servant sanction of only that authority would be necessary who would be entitled to remove him from that office which is alleged to have been misused or abused for corrupt motives
If the accused has ceased to hold that office by the date the court is called upon to take cognizance of the offences alleged to have been committed by such public servant no sanction under Sec
6 would be necessary despite the fact that he may be holding any other office on the relevant date which may make him a public servant as understood in Sec 21 if there is no allegation that office has been abused or misused for corrupt motives
The allegations in the complaint are all to the effect that the accused misused or abused his office as Chief Minister for corrupt motives
By the time the Court was called upon to take cognizance of those offences the accused had ceased to hold the office of Chief Minister
The sanction to prosecute him was granted by the Governor of Maharashtra but this aspect we consider irrelevant for concluding that no sanction was necessary to prosecute him under Sec 6 on the date on which the court took cognizance of the offences alleged to have been committed by the accused
Assuming that as MLA that aspect becomes immaterial
Further Sec
6 postulates existence of a valid sanction for prosecution of a public servant for offences punishable under Secs
161 164 165 IPC and Sec
5 of the 1947 Act if they are alleged to have been committed by a public servant
In view of our further finding that MLA is not a public servant within the meaning of the expression in Sec
21 IPC no sanction is necessary to prosecute him for the offences alleged to have been committed by him
In view of the conclusions reached by us we consider it unnecessary to ascertain which would be the authority competent to sanction prosecution of MLA as envisaged by Sec
6 thought it must be frankly confessed that considerable time was spent in the deliberations 557 in search of competent sanctioning authority
The vital question has become one of academic interest
We propose to adhere to the accumulated wisdom which has ripened into a settled practice of this Court not to decide academic questions
The question is left open
Before we conclude let it be clarified that more often in the course of this judgment we have used the words office of MLA  It was debated whether the MLA holds seat or office Our use of the expression office  should not be construed to mean that we have accepted that the position of MLA can be aptly described
as one holding public office or for that matter
To sum up the learned special Judge was clearly in error in holding that MLA is a public servant within the meaning of the expression in Sec
12a and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused
For the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set aside
This appeal accordingly succeeds and is allowed
The order and decision of the learned Special Judge Shri RB Sule dated
July 25 1983 discharging the accused in Special Case No 24 of 1982 and Special Case No383 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged
The accused was the Chief Minister of a premier State the State of Maharashtra
By a prosecution launched as early as on September 11 1981 his character and integrity came under a cloud
Nearly 212 years have rolled by and the case has not moved an inch further
An expeditious trial is primarily in the interest of the accused and a mandate of article 21
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused
There fore Special Case No 24 of 1982 and Special Case
No 383 pending in the Court of Special Judge Greater Bombay Shri RB Sule are withdrawn and transferred to the High Court of Bombay with a request to the to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court
On being so assigned the learned Judge may proceed to expeditiously dispose of the cases Preferably by holding the trial from day to day


Summary:
The appellant RS Nayak filed a complaint against the respondent AR Antualy a public servant being the Chief Minister of Maharashtra State under sections 161 165 IPC and section 5 of the Prevention of Corruption Act 1947 1947 Act alleging abuse of office of Chief Minister
The complaint was rejected on account of absence of necessary sanction of the Governor of Maharashtra State under section 6 of the 1947 Act to prosecute the respondent
After the Governor issued necessary sanction the appellant filed a fresh complaint in the Court of Special Judge against the respondent on the same grounds
However on the date of filing fresh complaint the respondent had already resigned as Chief Minister
The respondent contended that the Special Judge had no jurisdiction to try him under section 7 of the Criminal Law Amendment Act 1952 and that no cognizance could be taken on private complaint
The Special Judge rejected both the contentions
In the meantime the State Government issued a notification under section 72 of the Criminal Law Amendment Act 1752 under which the case was transferred to another Special Judge
In a criminal revision application filed by the respondent against the order of earlier 496 Special Judge a Division Bench of the High Court held that the Social Judge had jurisdiction to try the respondent and that the private complaint was maintainable
When the latter Special Judge proceeded with the case the respondent filed an application for his discharge on the grounds that the charge against him was baseless and that he being a Member of legislative Assembly MLA requisite sanction under section 6 of the 1947 Act was necessary
The Special Judge discharged the respondent holding that the respondent being MLA was a public servant within section 21 12a of IPC and hl the absence of the sanction of the Legislative Assembly he could not take cognizance of offence
The Special Judge also held that
the material date for deciding the applicability of section 6 of the 1947 Act was the date on which the Court was asked to take cognizance of the offence
The appellant challenged the order of the Special Judge in this Appeal
The questions which arose for consideration were a That is the relevant date with reference to which a valid sanction is a pre requisite for the prosecution of a public servant for offences enumerated in section 6 of the 1947 Act  b If the accuse holds several offices occupying each of which makes him a public servant is sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him necessary and if anyone of the competent authorities fails or declines to grant sanction is the Court precluded or prohibited from taking cognizance of the offence with which the public servant is charged or is it implicit in section 6 of the 1947 Act that sanction of that competent authority alone is necessary which is entitled to remove the public servant from the office which is alleged to have been abused or misused for corrupt motives  c Is MLA a public
servant within the meaning of the expression in clauses 12a 3 and 7 of section 21 IPC  d Is sanction as contemplated by section 6 of the 1947 Act necessary for prosecution of MLA and if so which is the sanctioning authority competent to remove MLA from the office of Member or the Legislative Assembly  Allowing the appeal
 HELD The provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it
If the words of the statute are clear and unambiguous it is the plainest duty of the court to give effect to the natural meaning of the words used in the provisions
In the event of an ambiguity of the plain meaning of the words used in the statute being self defeating the court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute
Whenever a question of construction arises upon ambiguity or where two views are possible of a Provision it would be the duty of the court to adopt that construction which would advance the object underlying the Act
521 A C The basic purpose underlying all canons of construction is the ascertainment 497 with reasonable certainty of the intention of Parliament in enacting the legislation
A For this purpose why should the aids which Parliament availed of such as report of a special committee preceding the enactment existing state of law the environment necessitating enactment of legislation and the object sought to be achieved be denied to court whose function is primarily to give effect to the real intention of the Parliament in enacting the legislation
Such denial would deprive the court of a substantial and illuminating aid to construction
Therefore departing from the earlier English decisions the reports of the committee which preceded the enactment of a legislation reports of Joint Parliamentary Committee report of a commission set up for collecting information leading to the enactment are permissible external aids to construction
527 A D E In construing a statute more especially the ancient statute the court may look at the surrounding circumstances when the statute was enacted
The construction of ancient statutes may be eludicated by what in the language of the courts is called contemporanea expositio that is by seeing how they were understood at the time when they were passed
528F G Standard dictionaries as a rule give in respect of each word as many meanings in which the word has either been used or it is likely to be used in different contexts and connections
While it may be permissible to refer to dictionaries to find out the meaning in which a word is capable of being used or understood in common parlance the well known cannon of construction should not even for a minute be overlooked that the meaning to the words and expressions used in a statute ordinarily take their colour from the context in which they appear
539F G Deputy Chief Controller of Imports  Exports New Delhi vs KT Kosalram Ors  at 517 and State Bank of India vs N Sundara Money   referred to
Section 6 of the Prevention of Corruption Act 1947 bars the courts from taking cognizance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction
Therefore when the court is called upon to take cognizance of such offences it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant
Undoubtedly the accused must be a public servant when he is alleged to have committed the offence of which he is accused because sections 161 164 165 IPC and section 52 of
the 1947 Act clearly spell out that the offences there in defined can be committed by a public servant
A trial without a valid sanction where one is necessary under section 6 would be a trial without jurisdiction by the court
It is well settled that the relevant date with reference to valid which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by section 6 is the date when the court is called upon to take cognizance of the offence of which he is accused
If therefore when the offence is alleged to have been committed the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant he has cased to be a public servant section 6 will not be attracted and no sanction would be necessary for taking cognizance of the offence against him
This approach is in accord with the policy underlying s6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution
If he has ceased to be a public 498 servant in the meantime this vital consideration ceases to exist
512D H 513 A E
CR Bansi vs State of Maharashtra 1971 3 SCR 236 RR Chari vs State of UP   SN Bose vs State of Bihar 1968 3 SCR Venkataraman vs The State  at 1052 KS Dharmaatan vs Central Government  Ors   referred to
In the instant case long before the date on which the cognizance was taken by the Special Judge the accused had ceased to hold the office of the Chief Minister and as such had ceased to be a public servant in his capacity as Chief Minister
A fortiori no sanction as contemplated by section 6 was necessary before cognizance of the offence could be taken against the accused for offences alleged to have been committed in his former capacity as public servant
514 D E The submission that if the accused has held or holds a plurality of offices occupying each one of which makes him a public servant under section 6 sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him would be necessary and if anyone of the competent authorities fails or declines to grant sanction the court is precluded or prohibited from taking cognizance of the offence with which the public servant is charged is not acceptable
Such an interpretation of s6 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 there by defeat the process of law
Such an interpretation is contrary to all cannons of construction and leads to an absurd end product which of necessity must be avoided
520G 518F C The State SPE Hyderabad vs Anr Commodore Kailash Chand   referred to and partly dissented from
The expression office  in the three sub clauses of s 61 clearly denotes that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction lo prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused
The sanction to prosecute a public servant can be given by an authority competent to remove him from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider
The authority entitled to grant sanction must apply its mind to the facts of the case evidence collected and other incidental facts before according sanction
A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecutions and the aforesaid requirements must therefore be strictly complied with before any prosecution could be launched against public servants
Therefore it is implicit in s6 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
516H 517A D Mohd Iqbal Ahmed vs State of A P 1979 2 SCR 1007 referred to
499 The finding of the Special Judge that the respondent being MLA was a public servant within clauses 12a 3 and 7 of s21 IPC and sanction of the Legislative Assembly to prosecute him was necessary is not correct
A person would be a public servant under clause 12a of section 21 IPC if he falls under any of the following three categories i if he is in the service of the Government or ii if he is hl the pay of the Government or iii if he is remunerated by fees or commission for the performance of any public duty by the Government
Looking into the history and evolution of s21 IPC as traced and adopted as an external aid to construction it is clear that MLA was not and is not a public servant  within the meaning of expression in any of the clauses of section 21 IPC Assuming that it would not be legally sound or correct according to well accepted cannon of construction of a statue of construe section 2112a by mere historical evolution of the section the constitutionally valid approach would be to look at the language employed in the section to ascertain whether MLA is a public servant within the meaning of the expression in that section
Depending upon the context or 
The use of the expression or  in the context in which it is used in cl12 a does appear to be a disjunctive
Therefore those would be a public servant
The question is whether MLA falls in under any of the above three categories It was concerned that MLA is not the service of the Government but it was contended that MLA is in the pay of the Government
Undoubtedly MLA receives a salary and allowances his capacity as MLA under the relevant statute
But does it make him a person in the pay of the Government  The word pay  standing by itself is open to various shades of meaning and when the word is used in a phrase in the pay of  it is more likely to have a different connotation than when standing by itself
The phrase in the pay of  would ordinarily import the element of employment or paid employment or employed and paid by the employer
The phrase does not import of necessity a master servant relationship between the person receiving the pay and the Government as payer
Next what does the expression Government  in cl
12a of section 21 IPC connote  Section 17 IPC provides that the word Government  denotes the Central Government or the Government of a State
71 IPC provides that every expression which is explained in any part of the Code is used in every part of the Code in conformity with the explanation 
Let it be noted that unlike the modern statute s7 does not provide unless the context otherwise indicate  a phrase that prefaces the dictionary clauses of a modern statute
Therefore the expression Government  in section 2112a must either mean the Central Government or the Government of a State
The Central Government being out of considering the question is whether MLA is the pay of the Government of a State or is remunerated by fees for the performance of any public duty by the Government of a State
Even though MLA receives pay and allowances he is not in the pay of he state Government because legislature of a State cannot be comprehended in the expression State Government 
This conclusion would govern also the third part of c 12a ie remunerated by fees for performance of any public duty by the Government
Therefore if MLA is not in the pay of the Government in the sense of executive government or is not remunerated by fees for performance of any public duty by the exe 500 cutive government certainly he would not be comprehended in the expression public servant  within the meaning sf the expression in cl
12a
He is thus not a public servant within the meaning of the expression in cl
12a
This conclusion rein forces the earlier conclusion reached after examining the historical evolution of cl
12a 537 A B 536G E H 537 HE 539 E 541 A D F 543 E 551 A B Evolution of Parliamentary Privileges by section K Nag  Legislative Bodies Corrupt Practices Act 1925 Prevention of Corruption Act 1947 by Sethi and Anand P60 Santhanam Committee Report dt 31 3 1964 Lok Sabha Debates Third Series Vol 35 Cls 729 and 731 The Anti Corruption Laws Amendment Bill 1964 enacted as Act 40 of 1964 GA Monerop vs The State of Ajmer  The State of Ajmer vs Shivji Lal 1959 supp
2 SCR 739 Prabhashanker Dwivedi and Anr
vs The State of Gujarat AIR 1970 Gujart AIR 1970 Gujarat 97 State of Gujart vs Manshanker Prabhashanker Dwivedi  Green vs Premier Glynrohonwy State Co Ltd at 568 Babi Manmohan Das Shah  Ors
vs Bishnu Das  at 839 Kamta Prasad Aggarwal etc
Executive Engineer Ballabgarh  Anr   M Karunanidhi vs Union of India   Costituent Assembly debates Vol
VII p 984 Rai Shib Ram jawaya Kapur  Ors
vs The State of Punjab 1975 1 SCR 225 at p 236 Shamsher Singh  Anr
vs State of Punjab  Sardari Lalv
Union of India  Ors   His Majesty the King vs Boston 7 Ors 1923 24 33 Commonwealth Law Report 386 82 Earskine May Parhamentary Practice 20 edition p 149 referred to The Submission that the accused would be a public servant within the meaning of the expression any person empowered by law to discharge any adjudicatory functions in cl
3 of s21 IPC must be rejected
Participation in a debate on a motion of breach of privilege or for taking action for contempt of the House and voting thereon in a constitutional function discharged by the members and therefore it cannot be said that such adjudicatory functions if it can be so styled constitutes adjudicatory function undertaken by MLA as empowered by law
554 E F Special Ref
No 1 of 1966  at pages 490 491 and 472 IC Golaknath vs State of Punajab  Sripadangalavaru vs State of Kerala and Anr 1973 Supp
SCR 1 referred to
The submission that MLA would be a public servant within cl
7 of s21 IPC must be rejected
7 takes within its ambit every person who holds any office by virtue of which he is empowered to place or keep any person in confinement
Broadly stated the expression comprehends police and prison authorities or those under an obligation by law or by virtue of office to take into custody and keep in confinement any person
To say that MLA by virtue of his office is performing policing or prison officers  duties would be apart from doing violence to language lowering him in status
Additionally cl7 does not speak of any adjudicatory function
lt appears to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case which may lead to imposition of a prison sentence and a Person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in confinement
554G 555 F H In view of the finding that MLA is not a public servant under clauses 12a 3 and 7 of s21 IPC and no sanction under s6 of the Prevention of Corruption is necessary to prosecute him
it is not necessary to ascertain which would be the authority competent to sanction prosecution of MLA 557 C In the instant case the allegations in the complaint are all to the effect that the accused misused or abused his office as Chief Minister for corrupt motives
By the time the Court was called upon to take cognizance of those offences the accused had ceased to hold the office of Chief Minister
The sanction to prosecute him was granted by the Governor of Maharashtra but this aspect is irrelevant for concluding that no sanction was necessary to prosecute him under s6 on the offences alleged to have been committed by the accused
Assuming that as MLA the accused would be a public servant under s21 in the absence of any allegation that he misused or abused his office as MLA that aspect becomes immaterial
Further s6 postulates existence of a valid sanction for prosecution of a public servant for offences punishable under section 161 164 165 IPC and s5 of the 1947 Act if they are alleged to have been committed by a public servant
In view of the finding that MLA is not a public servant within the meaning of the expression in s21 IPC no sanction under s6 is necessary to prosecute him for the offences alleged to have been committed by him
556 G 557 A B