DILIP KUMAR SAIKIA Vs. STATE

JUDGEMENT

(1.) This is an application under Section 397 (1) read with Section 401 of he Code of Criminal Procedure, 1973 and Article 227 of the Constitution praying for quashing the order dated 18-8-98 of the learned Special Judge, Assam at Guwahati in Special Case No. 16(C)/98 taking cognizance of the offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 against the petitioner.

(2.) The relevant facts briefly are that on or about 3-7-93 FIR No. 12/93 was registered under Sections 409, 468, 420 and 120-B, Indian Penal Code (for short, "IPC") and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, "PC Act, 1988") by he Anti-Corruption Branch, Assam, Guwahati. The case was thereafter transferred by the Government of Assam to the Central Bureau of Investigation (for short, "CBI") for further investigation and registered afresh as RC-3 (A)/94-ACU (II). After further investigation, the CBI filed a charge-sheet dated 15-7-98 in the Court of Special Judge, Assam, a Guwahati against 39 accused persons including Sri P. K. Mahanta, Chief Minister of Assam and the petitioner. So far as the allegations against the petitioner are concerned, it is stated in the said charge-sheet that as per the investigation of the CBI, the petitioner was Minister, Veterinary, Government of Assam during 1986 to 1990 and he knew very well that Sri R. P. Borah was withdrawing money from ICDP, Demow on the basis of bogus and fictitious bills and he conspired with Sri R. P. Borah and others and took large sums of money from the defrauded funds of ICDP, Demow from Sri R. P. Borah. He took two flats in Jewel House, Andheri (West), Bombay and one Ice Cream Parlour in Varsova, Bombay in his name, in the name of his wife and in he name of Sri Pranjal Choudhury, his brother-in-law, from the funds illegally withdrawn by Sri R. P. Borah from ICDP, Demow. He took CI sheets amounting to Rs. 8 lacs approximately and also Demand Drafts amounting to Rs. 13 lacs from these funds which were distributed in various schools, institutions, clubs, naamghars in the constituency of Dhemaji from where he fought election during 1986 and 1991. He abetted Sri R. P. Borah to commit the offence of cheating by giving protection to him. He therefore committed offences punishable under Section 120-B read with Section 420, IPC and Section 13(2) read with Section 13 (1)(d), PC Act, 1988. After perusing the said charge-sheet and the materials filed along with the charge-sheet, the learned special Judge, Assam at Guwahati took cognizance against the accused persons including the petitioner by the impugned order dated 18-8-98. But by the said order dated 18-8-98, the learned special Judge did not take cognizance against Sri P. K. Mahanta, the present Chief Minister of Assam as the authority had not accorded sanction. The petitioner's case is that since he was the Minister, Veterinary Department, Government of Assam and is presently a Member of Legislative Assembly, the learned Special Judge had no jurisdiction to take cognizance against the petitioner without sanction by the competent authority under Section 19 of the PC Act, 1988 and under Section 197, Code of Criminal Procedure (for short, "Cr. P.C.").

(3.) Mr. D. K. Mishra, learned counsel appearing for the petitioner, submitted that Section 19 of the PC Act, 1988, provided that no Court would take cognizance of an offence punishable under Section 13 alleged to have been committed by a public servant, except with the previous sanction of the competent authority, and in a long line of cases, the Courts have held that previous sanction of the competent authority would be required under Section 19 of the PC Act, 1988 if the person sought to be prosecuted was a public servant at the time of commission of the offence and was a public servant at the time when the cognizance of the offence was taken by the Court. He explained that the petitioner was the Minister, Veterinary Department, Government of Assam at the time when the offence under Section 13 of the PC Act, 1988 was alleged to have been committed and was therefore a public servant at the time of commission of the offence. He further explained that the petitioner was a Member of Legislative Assembly of Assam at the time when cognizance was taken by the learned Special Judge, Assam, by his impugned order dated 18-8-98. Mr. Mishra submitted that it had been decided by the Supreme Court in P. V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 : (1998 Cri LJ 2930), hat Members of Parliament were public servants for the purposes of the PC Act, 1988, and could not be prosecuted for offences under the said Act without the previous sanction of the competent authority under Section 19 of the said Act. Mr. Mishra contended that the petitioner was also a public servant as he was a Member of the Legislative Assembly of the State of Assam and the learned Special Judge could not have taken cognizance of the offence under Section 13 of the PC Act, 1988 against the petitioner without the previous sanction from the competent authority under Section 19 of the said Act. Mr. Mishra submitted that sub-section (2) of Section 19 of the PC Act, 1988 contemplated situations where a public servant had ceased to hold office under one Government or authority and had assumed office under another Government or authority and clarified that the Government or authority competent to give sanction would be one who was competent to remove a public servant from his office at the time when the offence was alleged to have been committed. He explained that the petitioner was the Minister, Veterinary, Government of Assam at the time when the offence was alleged to have been committed and was presently holding the office of MLA under the Speaker of the Legislative Assembly of Assam, and it was the Governor of Assam who was competent to remove him from the office of Minister which he was holding at the time when the offence was alleged to have been committed by him and therefore under Section 19(2) of the PC Act, 1988 it was the Governor of Assam who was the competent authority to sanction for prosecution. For this proposition, Mr. Mishra cited the decision of the Supreme Court in S. A. Venkataraman v. The State, AIR 1958 SC 107 : (1958 Cri LJ 254), which was a decision on sub-section (2) of Section 6 of the Prevention of Corruption Act, 1947, (for short, "PC Act, 1947"), and argued that since sub-section (2) of Section 19 of the PC Act, 1988 is identically worded as sub-section (2) of Section 6 of the PC Act, 1947, the said decision equally applies to Section 19 of the PC Act, 1988.