ORDER
N. Krishnan Nair, J.
1. This revision is directed against the Order dated 31.3.2001 of the Enquiry Commissioner & Special Judge, Thiruvananthapurm on the final report in Crime No. 1/97/SCT of the Vigilance & Anti Corruption Bureau, Special Cell, Thiruvananthapuram.
2. The facts necessary for the disposal of this petition may be stated as follows:
Sri. K. Karunakaran, a member of the Parliament and a former Chief Minister of the Kerala State is the first accused in V.C. 1/1997 on the file of the Vigilance and Anti Corruption Bureau, Special Cell, Thiruvananthapuram. The said crime was registered alleging the commission of the offences punishable under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code. The allegation is that Sri. K. Karunakaran, the then Chief Minister of Kerala, Sri. T.H. Mustaffa, former Minister for Civil Supplies, Sri. S. Padmakumar, the then Chief Secretary to Government of Kerala, Sri. Zachariah Mathew, then Additional Chief Secretary of Food and Civil Supplies, Sri. Jiji Thomson and P.J. Thomas by abusing their official position as public servants employed in the affairs of the Government of the State of Kerala entered into a criminal conspiracy among themselves and also with Power and Energy and PTE of which Accused Nos. 6 and 7 were the Directors and Mala Export Corporation and in pursuance of the conspiracy arranged the import of Pamolein through M/s. Power and Energy Pvt. Ltd., Singapore and M/s. Mala Trading Corporation, Madras in violation of the rules and procedures laid down by the Central/State Governments and caused pecuniary loss of approximately Rs. 2.8, crores to the Kerala State and thereby the accused committed the offences. After completing the investigation, a final report was filed before the Special Judge, Thiruvananthapuram under Section 173(2)of the Cr.P.C. on 1.11.1999. As the investigating agency was of the view that sanction from the Lok Sabha Speaker is necessary for prosecuting the first accused, the Special Judge was requested to take cognizance of the offences after getting the permission of the Speaker of the Lok Sabha. On 21.1.2000, another report was filed by the investigating agency seeking extension of time to obtain permission for prosecution. The learned Special Judge extended the time by three months as a last chance to obtain and produce necessary sanction. Again on 20.4.2000, another report was filed by the investigating agency seeking further extension of time. But the lower court was not inclined to extend the time and ordered to return the final report to the; investigating officer to resubmit the same after obtaining permission. While so, on 23.3.2001, the investigating officer resubmitted the final report stating that since the first accused has ceased to be Chief Minister of Kerala, permission of the Speaker of Lok Sabha is not required to prosecute him. But the court below held that permission of the Lok Sabha Speaker is necessary to prosecute the first accused. The relevant portion of the order of the lower court reads as follows:
Since the main allegation is against Accused No. 1 and as the main offences alleged against him is the offence under Section 13 of the P.C. Act, 1988, it is for the prosecution to slate whether it would be sufficient to take cognizance against Accused No. 1 for the of fence, under Section 120B IPC only or whether if is just and proper to wait till the permission of the Speaker of the Lok Sabha is obtained for prosecuting the accused for the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and then proceed in the matter. A report to this effect is to be filed within seven days.
The said order is seriously challenged in this revision filed by the State.
3. Since the lower court had not taken cognizance of the offences and no processes were issued to the accused, the accused in the case were not made parties in this Revision Petition. But at the time of admission, I thought it was necessary to implead Sri. K. Karunakaran as a respondent in this case since a very important question of law is involved in the case As per the Order dated i 1.4.2001 Sri. Karunakaran was impleaded as a respondent in the Revision Petition.
4. Heard the learned Director General of Prosecution for the Slate and the learned Senior Counsel Sri. Kapil Sibal for the respondent. The learned Senior Counsel Sri. Kapil Sibal strongly supported the order of the court below and urged that there is no ground for interference. According to the learned counsel, even if a public servant has ceased to hold that office which he is alleged to have misused and abused but on the date of taking cognizance of the offence he holds entirely a differently public office, sanction of the competent authority under Section 19 of the Act is necessary to prosecute him. He also pointed out that the relevant date with reference to which a valid sanction is sine qua mm for taking cognizance of an offence committed by a public servant as required by Section 19 of the P.C. Act is the date on which the court is called upon to take cognizance of the offence of which he is accused.
5. The question arising for consideration is whether permission of the Lok Sabha Speaker is necessary to prosecute the respondent who is now a member of the Parliament for the offences alleged to have been committed by him under the P.C. Act while holding the office of the Chief Minister. Admittedly, at the time when the offences were alleged to have been committed by him, he was the Chief Minister of the State of Kerala and when the court was called upon to take cognizance of the offences, he had ceased to be the Chief Minister of the State. But at that time he was a member of the Parliament. It is settled position that a member of the Parliament is a public servant under Section 2(c) of the P.C. Act and the prosecuting agency before filing a charge sheet in respect of an offence under Sections 7, 10, 11, 13 and 15 of the P.C. Act against a member of Parliament in a Criminal Court shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be (See P.V. Narasimha Rao v. State (CBI/SPE) AIR 1998 SC 2120). In this case, the respondent was a public servant not only at the time when the offences were alleged to have been committed by him, but also at the time when the court was called upon to take cognizance of the offences against him. But nobody has a case that he has abused or misused his office as a member of Parliament. The allegation is that he had misused or abused his office as the Chief Minister of the State for corrupt motives. But by the time the court was called upon to take cognizance of the offences he had ceased to hold the office of the Chief Minister. The question is whether in such a situation permission of the Lok Sabha Speaker is necessary to prosecute him for the offence punishable under Section 13 of the P.C. Act. In this connection it is advantageous to refer to Sub-sections 1 and 2 of Section 19 of the P.C. Act. Sub-sections 1 and 2 of Section 19 read as follows:
1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13and 15 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, of that Government: in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government. 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 as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the 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."
6. Thus it is clear that under Section 19 of the P.C. Act sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time the offence was alleged to have been committed. Under Sub-section (2) of Section 19, the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. Therefore, I cannot accept the contention of Sri. Kapil Sibal that though the first respondent had ceased to be the Chief Minister of Kerala, since he was holding the office of a Member of the Parliament at the time when the charge sheet was filed, permission of the Speaker of Lok Sabha is necessary to prosecute him for the offence under the P.C. Act. The Supreme Court considered a similar contention in R.S. Nayak v. A.R. Antulay (1984 (2) SCC 183). Relevant discussion is as under:-
24. Now, if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used (sic misused) nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submissions that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used (sic misused) or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal Law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation public offices would be necessary before the court can take cognizance of the offence committed by such public servant, while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd end product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue’s charter (See Davis & Sons Ltd. v. Atkins (1977 Imperial Court Report 662).”
The learned Senior Counsel Sri. Kapil Sibal placed much reliance on the decisions of the Supreme Court in State (S.P.E. Hyderabad) v. Air Commodore Kailash Chand (AIR 1980 SC 522) and in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411). In Kailash Chand’s case, the accused Kailash Chand was a member of the Indian Air Force. He retired from service on June 15, 1965, but was reemployed for a period of two years with effect from June 16, 1965, His reemployment ceased on April 1st 1968. A charge sheet was laid against him for having committed an offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 during the period March 29 1965 to March 16, 1967. The Supreme Court held that the accused was a public servant as an active member of the Indian Air Force and therefore sanction to prosecute him under Section 6 was necessary. The Supreme Court considered this decision in Antulay’s case and held that the decision does not lay down the correct law and cannot be accepted as making a correct interpretation of Section 6″.
7. In Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411), the appellant was an IPS Officer and was a Superintendent of Police in the State Police Service, Orissa. On 12.5.1990, a raid was conducted on the residence of the appellant and a good amount of cash and jewellery was recovered. A case was registered against him under Section 13(2) of the Prevention of Corruption Act, 1988. The appellant retired from service on 31.12.1990. A charge sheet was filed against him for the offences under Section 13(2) read with Section 13(1)(e) of the PC. Act on 30.9.1992. The main contention of the appellant was that the Legislature did not include a retired public servant within the purview of the Act. The Supreme Court held thus:
“A public servant who committed an offence mentioned in the Act, while he was a public servant can be prosecuted with sanction as contemplated under Section 19 of the Act, it he continues to be a public servant, when the court takes cognizance of the offences, but it he ceases to be a public servant at that time, the court can lake cognizance of the offence without such sanction. In other words, the public servant who committed the offence while he was a public servant is liable to be prosecuted whether he continues in office or not at the time of trial or during the pendency of the prosecution.”
In the case referred to above, the only question which came up for the consideration of the Supreme Court was whether sanction of the competent authority under Section 19 of the P.C. Act is necessary if the public servant who committed the offences has ceased to be a public servant at the time of taking cognizance of the offences. The Supreme Court held that in such a situation sanction under Section 19 of the Act is not necessary and sanction is required only if he continues to be a public servant. There is nothing in the decision to indicate that sanction of the authority competent to remove the public servant from office is necessary even if he is neither alleged to have misused or abused that office for corrupt motives. Therefore, the said decision is of no assistance.
8. No doubt, in this case, if the respondent continued to be the Chief Minister of Kerala at the time when the charge sheet was filed sanction as required under Section 19 of the Act would have been necessary to prosecute him. In this connection, it is also relevant to refer to a recent decision of the Supreme Court in Balakrishnan Ravi Menon v. Union of India (judgment dated 17th September 2002 of the Supreme Court in Special Leave Petition (Criminal) No. 3960/2002). In that case, the petitioner Sri. Menon was appointed as Chairman and Managing Director of Goa Shipyard (Central Govt. Undertaking) on 8.11.1994. The CBI registered a crime against him and on 12.2.1999 conducted a raid on his premises. He retired as Chairman and Managing Director of Shipyard Ltd. on 7.11.1999. After his retirement on 8.3.2000, he was appointed as Chairman and Managing Director of Transformers and Electricals Ltd. by the State Government of Keraia. While he was functioning as such on 20th November, 2000, a charge sheet was laid before the Special Judge, South Goa at Margoa on the basis of the FIR registered on 5.2.1999. It was contended by him that since at the relevant time when the charge sheet was filed, he was holding the post of Chairman and Managing Director of Transformers and Electricals Ltd. he cannot be prosecuted without obtaining sanction as contemplated under Section 19 of the Act. The Special Judge as well as the High Court relying upon the decision of the Supreme Court in R.S. Nayak v. A.R. Antulay rejected the contention. He moved a Special Leave Petition before the Supreme Court and the Supreme Court dismissing the petition observed as follows:
“Admittedly when the alleged offence was committed, petitioner was appointed by the Central Government. He demitted his office after completion of five years. Therefore, at the relevant time when the charge sheet was filed, petitioner was not holding office of the Chairman of the Goa Shipyard Ltd. Hence there is no question of obtaining any previous sanction of the Central Government.”
In this case, as stated earlier, the respondent was the Chief Minister of the State of Kerala when the offences were alleged to have been committed by him. He demitted the office of the Chief Minister and when the charge sheet was filed, he was a Member of the Parliament. There is no allegation that he has misused or abused his office as a Member of Parliament for corrupt motives. Therefore, no permission of the Speaker of Lok Sabha would be necessary to prosecute him despite the fact that he was a Member of Parliament when the charge sheet was filed.
For the reasons stated above, I hold that permission of the Speaker of Lok Sabha is not necessary to prosecute the respondent for the offences alleged to have committed by him under the P.C. Act. I set aside the impugned order and allow this revision petition filed by the State.