Case Note & Summary
The Supreme Court considered appeals by three former ministers of Orissa who were prosecuted for possession of pecuniary resources or property disproportionate to their known sources of income, an offence of criminal misconduct under Section 13(1)(e) of the Prevention of Corruption Act, 1988. The alleged offences were committed during their tenure as ministers in the Council of Ministers of the State of Orissa. After a change of government, they ceased to be ministers and were subsequently elected as Members of the Legislative Assembly (MLAs), continuing as MLAs when prosecutions were launched. The appellants filed applications before the Special Court for recalling cognizance on the ground that being MLAs they were public servants under Section 2(c)(viii) of the Prevention of Corruption Act and therefore required sanction of the Governor under Section 19 read with Article 192 of the Constitution. The Special Court dismissed the applications, holding an MLA was not a public servant and the Governor was not competent to remove an MLA. On appeal, the Orissa High Court Division Bench held that an MLA is a public servant under Section 2(c)(viii), but the Governor's power under Article 192 is disqualification, not removal by way of punishment, so sanction was not required. The appeals before the Supreme Court raised the common question whether sanction was required for launching criminal prosecution. The appellants argued that as sitting MLAs they were public servants and the Governor was the authority competent to remove them under Article 192; hence sanction under Section 19 was mandatory. They relied on R.S. Nayak v. A.R. Antulay and other precedents. The prosecution's case, supported by the High Court reasoning, was that no sanction was required because the prosecutions were under the Orissa Special Courts Act, 1990, which had its own procedure, and that the offences related to ministerial office, not MLA office. The Court noted that the Orissa Special Courts Act, 1990, which came into force on 27 July 1992, provided for constitution of special courts for speedy trial and confiscation of property. Section 2(d) of that Act defined offence by reference to Section 13(1)(e) of the Prevention of Corruption Act. Section 5(1) required only a declaration by the State Government that there was prima facie evidence of commission of an offence by a person who held high public or political office. The Court held that when prosecution was launched under the Special Courts Act, the provisions of Section 19 of the Prevention of Corruption Act did not come into play; only a declaration under Section 5(1) was necessary. Assuming the Prevention of Corruption Act procedure applied, the appellants were prosecuted for misconduct during ministerial tenure, not as MLAs. In S.A. Venkataraman v. The State and Veeraswami v. Union of India, the Court had held that sanction under Section 6 of the predecessor Act was not needed when accused had ceased to be public servant at the time of cognizance. R.S. Nayak v. A.R. Antulay established that sanction must be from authority competent to remove from the office alleged to be misused, not from a different public office. Since the appellants no longer held ministerial office and their MLA status did not relate to the alleged misconduct, no sanction was required. Accordingly, all appeals were dismissed.
Headnote
A) Criminal Procedure - Sanction for Prosecution - Orissa Special Courts Act, 1990, Section 5(1); Prevention of Corruption Act, 1988, Section 19 - Special Courts Act provided independent procedure for prosecution of persons holding high political office requiring only State Government declaration of prima facie evidence, and Section 19 PCA did not apply. Held that no sanction from Governor or any other authority was necessary for launching prosecution under Special Courts Act (Para 10). B) Criminal Law - Sanction for Public Servant - Prevention of Corruption Act, 1988, Section 19; Prevention of Corruption Act, 1947, Section 6 - A public servant who ceased to be public servant at time of cognizance is not removable from office by competent authority, hence no sanction required. Held that since appellants were no longer ministers and prosecution related to ministerial tenure, Section 19 analogue Section 6 did not apply (Paras 12-13). C) Criminal Law - Sanction and Competent Authority - Prevention of Corruption Act, 1988, Section 19; Constitution of India, Article 192 - Sanction must be obtained from authority competent to remove public servant from office alleged to be misused; holding different public office not misused does not attract sanction. Held that MLA status did not require Governor's sanction when offence pertained to ministerial office (Paras 14-15).
Issue of Consideration
Whether sanction under Section 19 of the Prevention of Corruption Act, 1988 is required for launching criminal prosecution against former ministers who are now MLAs, for offences of criminal misconduct allegedly committed during their ministerial tenure, and whether prosecution under the Orissa Special Courts Act, 1990 requires such sanction.
Final Decision
Supreme Court dismissed the appeals, holding that no sanction under Section 19 of Prevention of Corruption Act, 1988 was necessary for prosecution under Orissa Special Courts Act, 1990, and that former ministers prosecuted for ministerial misconduct could not claim sanction based on MLA status.
Law Points
- Sanction under Section 19 of Prevention of Corruption Act
- 1988 not required when prosecution under Orissa Special Courts Act
- 1990
- Special Courts Act requires only State Government declaration under Section 5(1)
- Sanction required only if accused is public servant at time of cognizance and removable from office alleged misused
- Authority competent to remove from office abused must grant sanction
- MLA status does not affect sanction for offence committed as minister
- Public servant who ceased to be public servant not removable.
