- (1.) THIS is an application for revision of an order passed by the Special Judge, Greater Bombay, that the proceedings, which were before him in regard to an offence under Section 161 of the Penal Code committed by one Vishwa-kant Shrikant Pandit, were void for want of sanction under Section 6 of the Prevention of Corruption Act, 1947.
(2.) THE opponent, who was a public servant at the time when he is alleged to have committed the offence, was no longer in service at the time when the learned Special Judge passed his order, and the learned Special Judge has passed it upon the footing that at the time when cognizance was taken in the present case, the opponent, who has been dismissed from service, was no longer in service. The learned Special Judge held that sanction was necessary under the provisions of Section 6 of the Prevention of Corruption Act, which runs as follows: "6. (1) No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction,-- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government or some higher authority of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a Part A - State and is not removable from his office save by or with the sanction of the Provincial Government or Some higher authority, of the Provincial Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises 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. " The learned advocate, who appears on behalf of the opponent, has pointed cut, and with some force, that the section is modelled on Section 197, Cr. P. C. , which is as follows : "197. (1) When any person who is a Judge within the meaning of Section 19 of the Penal Cede, or when any Magistrate, or when any public servant who is not removable from Ms office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such ofl'ence except with the previous sanction- (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government. " He then points out that the opening words of Section 197 (1) raised a question as to whether sanction was or wag not necessary in the case of a person, who was no longer in service at the time when the Court is called upon to take cognizance of the offence committed by him. There was a difference between the High Courts with regard to the question as to whether in Such cases sanction was necessary, though it must be stated at the outset that so far as the offences under Section 161 or Section 165 of the Penal Code are concerned, there was no difference of opinion, for the reason that the view which prevailed when the Prevention of Corruption Act was enacted was that a public servant, who commits offences under Section 161 or Section 165, cannot possibly be said to be acting or purporting to act in the discharge of his official duly. The learned advocate argues that even so, with regard to offences which could be said to have been committed by a public servant while acting or purporting to act in the discharge of his official duty, there was a differ-, ence of opinion between the High Courts, and the Legislature must have been aware of that difference; and it is because it was so aware that it hag deliberately chosen to adopt a different phraseology in the opening part of Section 6 (1) of the Prevention of Corruption Act. Whereas Section 197 (1), Cr. P. C. , said: "when any person who is a Judge within the meaning of Section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. . . . . " Section 6 (1) of the Prevention of Corruption Act says, altering the order in which the words were used in Section 197 (1), "no Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Penal Cede or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction" of the authorities mentioned in clauses (a), (b) and (c) of Sub-section (1 ). He points out, besides, that whereas the marginal note of Section 197 (1) was "prosecution of Judges and public servants", the marginal note of Section 6 (1) is "previous sanction necessary for prosecution", taking out the words 'public servants' from the marginal note. Counsel contends that these changes are deliberate and they are made with a view to making sanction necessary not only with regard to public servants, who are in office but those who are no longer in office.
(3.) NOW, one can understand the contention that there is something to be said in favour of giving protection to public servant's in regard to prosecution of the offence mentioned in Section 6 (1), even after they have ceased to be in service. But one thing which must be ncted is that prior to the enactment of Section 6 (1), even a public servant, who was in service, enjoyed no protection in regard to the offences under Section 161 or Section 165, two of the offences with which Section 6 (1) deals. The third offence with which it deals was actually created by the Prevention of Corruption Act itself. It is quite true that the Prevention of Corruption Act widened the scope of the offences which could be committed by a public servant. It created for the first time the offence of criminal misconduct in discharge of official duty defined by Section 5. It at the same time granted for the first time public servants the protection enacted in Section 6 (1 ). That was that they were not liable to be prosecuted, except upon sanction accorded by the authority mentioned in the section. It is contended, therefore, en behalf of the opponent that we should not approach the question of the construction of Section 6 (1) from the point of view that there was no sanction necessary in respect of the acts dealt with by that section which were already offences before the Prevention of Corruption Act was enacted. Even though there is force in this contention, it is necessary to remember that the Act itself is a Prevention of Corruption Act, and its object was the more effective prevention of bribery and corruption. While bearing in mind, therefore, that it was considered desirable that there should be given to a public servant protection from frivolous or vexatious prosecution, we ought not to extend the protection to persons, who are no longer ill service, unless the wording of that section makes such an interpretation absolutely necessary.;