Case: State of West Bengal Vs. Shyamadas Banerjee &amp; Another

21. The schedule referred to in Section 4 of the Act provides for offences triable by Special Judges. Paragraphs 2 and 3 of the said Schedule provides as follows:- "2. An offence punishable under Section 409 of the Indian Penal Code (Act XLV of 1860), if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government company in respect of property - with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.3. An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent." 22. Section 2 of the 1947 Act which defines public servants is also reproduced hereinbelow: "2. Interpretation - For the purpose of this Act. ‘public servant means a public servant as defined in Section 21 of the Indian Penal Code." 23. In other words, in order to fall within the scope of the 1947 Act an accused person will have to answer the definition of "public servant" as indicated in Section 21 IPC. The decision in P.V. Narasimha Raos case (supra) was dealing with a public servant as defined in Section 2(c)(viii) of the 1988 Act, which reads as follows: "2. Definitions - In this Act, unless the context otherwise requires –(a) xxx(b) xxx(c) "public servant" means,-(i) xxxxx(ii) xxxxx(iii) xxxxx(iv) xxxxx(v) xxxxx(vi) xxxxx(vii) xxxxx(viii)any person who holds an office by virtue of which he is authorized or required to perform any public duty." 24. Since in the instant case we are concerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulays case, we are not expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take 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 takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated.28. We, accordingly,

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]se, we areconcerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulaysnot expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take 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 takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated.