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

3. On the basis of certain newspapers reports one Nikhil Kishore Roy filed a Public Interest Litigation in the Calcutta High Court against the respondent No.1, Shri Shyamadas Banerjee, alleging that he had misused his official position as M.L.A. by submitting forged and fictitious medical bills and fees for prescription for Rs.1,65,530.30 on account of the treatment of his wife and his mother between 8.9.1998 to 10.11.1998. The said Writ Petition, being No.1311 of 1999, was disposed of by a Division Bench of the Calcutta High Court on 23.6.1999, holding that the writ petitioner could have lodged a First Information Report or filed a complaint petition before the concerned Magistrate. Thereafter, on the basis of the F.I.R. lodged by Shri Nikhil Kumar Roy investigation was started under Section 468, 471, 420 and 511 of the Indian Penal Code, (hereinafter referred to as "IPC"), by the Hare Street Police Station. The respondent No.1 surrendered before the Chief Metropolitan Magistrate, Calcutta, on 17.1.2000, and was released on bail. Charge- sheet was filed on 16.1.2003, on the basis whereof the Special Court assumed jurisdiction under the Special Courts Act, 1949, against the respondent No.1 treating him to be a "public servant" and framed charges against him under Section 420/468/471 and 511 IPC.4. Aggrieved by the order of the Special Judge 4th Court, Calcutta, taking cognizance on the basis of the charge-sheet filed, the respondent No.1 moved the High Court in revision (CRR No.1931 of 2003) alleging that the cognizance taken was illegal since no sanction had been obtained by the investigating agency to file a charge-sheet against him. The High Court disposed of the revision petition granting liberty to the trial Judge to proceed with the matter while the respondent No.1 was given liberty to adjudicate the points which had been taken by him in the revision application before the learned trial Judge. Such application was made by the petitioner on 10.9.2003, but the same was rejected by the learned trial Judge which impelled the respondent No. 1 to once again move the High Court in revision )CRR No.2364 of 2003).5. During the hearing of the revision application, at the very outset it was urged on behalf of the respondent No.1 that since he had ceased to be a M.L.A. when cognizance was taken by the learned Special Judge, such cognizance was bad and the proceedings taken on the basis thereof stood vitiated. It was contended that the Special Courts Act, 1949, enabled a Special Court to proceed against a M.L.A. defined as a "public servant" under the Prevention of Corruption Act, 1947 and not under the Prevention of Corruption Act, 1988. It was also contended that even if the respondent No.1 was a M.L.A. at the time of commission of the alleged offence, he ceased to be so when the charge-sheet was filed and the cognizance was taken thereupon. It was further contended that there was no specific statutory provision which provides that even though a person ceases to be a public servant, he could still be deemed to be a public servant for the purpose of trial under the provisions of the Special Courts Act, 1949, in respect of offences alleged to have committed before he ceased to be a public servant. It was submitted that, in the absence of such a provision, the charges framed and cognizance taken by the Special Judge was bad in law and liable to be quashed.6. After examining the aforesaid question in detail, the learned single Judge of the High Court was of the view that the respondent No.1 was neither a M.L.A. nor a public servant when cognizance was taken by the Special Judge. No sanction was, therefore, necessary for his prosecution, but at the same time the trial of the case could not be proceeded by the Special Judge. On the basis of the aforesaid conclusion, the High Court allowed the revision application and quashed the cognizance taken by the Special Court, but observed that the same would not prevent the prosecuting machinery from initiating further and/or fresh proceedings in accordance with law before the Court having jurisdiction to entertain the same.7. It is against the said order of the High Court that the instant appeal has been filed by the State of West Bengal.

Reasoning:
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.