Date of Judgement : 25 July, 1991

Equivalent citation : 1991 SCR (3) 189, 1991 SCC (3) 655

Bench : Shetty, K. J. Judge, Ray, B.C. Judge, Sharma L. M. Judge, Venkatachalliah, M.N. Judge, Verma, Jagdish Saran Judge.

Facts of the case : A complaint against the appellant who is a former Chief Justice of a High Court, was made to the CBI on which a case under  s. 5(2) read with s. 5( I )(e) of the

Prevention of Corruption Act, 1947 was  registered on 24.2.1976 and an F.I.R was the filed in the court of Special Judge on 28..2.1976. The appellant proceeded on leave from  9.3.1976  and retired on 8..4.1976 on attaining the age of superannuation. Investigation was then culminated and a charge sheet was filed against the appellant on 15.12.1977 before the Special Judge. The Charge-sheet stated that the appellant after assuming the office of the Chief Justice on 1.5.1969 gradually commenced accumulation of assets and was in the possession of pecuniary resources and property, in his name and in the names of his wife and two sons,  disproportionate to his known sources of income for the period between the date  of his appointment as Chief Justice and the date of  registration of the case, and thereby he committed the      offence of criminal misconduct under s. 5( 1 )(e), punishable under s.5(2) of the Prevention of Corruption Act, 1947. The  Special judge issued process for appearance of the appellant. Meanwhile, the appellant moved the High Court under s. 482, CrP.C. to quash the said criminal proceedings.

The  matter was heard by a Full Bench of the High Court which dismissed the application by 2:1 majority; but granted a certificate under Articles 132(1) and 134(1)(c) of the

Constitution in view of the important question of law involved. The matter then came to the Supreme Court of India.

Issues Raised : 

1)    Whether a judge of a High Court or of the Supreme Court is a ‘public servant’ within the meaning of s. 2 of the Prevention of Corruption Act, 1947 ?

2)    Whether a Judge of the High Court including Chief Justice or a Judge of the Supreme Court can be prosecuted for an offence under the Prevention of Corruption Act, 1947?

3)    Who is the competent authority to remove a Judge either of the Supreme Court or High Court from his office in order to enable that authority to grant sanction for prosecution of the Judge under the provisions of s. 6 of the Prevention of Corruption Act, 1947 ?

Arguments by both the sides 

PETITIONER :  The petitioner contended that the provisions of the Prevention  of  Corruption Act, 1947 do not apply to a judge of a superior Court as for such prosecution,

previous sanction of an authority competent to remove a public servant as provided under s. 6  of the Prevention of Corruption Act, 1947 is imperative and power to remove a Judge is not

vested in any single individual authority but is vested in the two Houses of Parliament and the President under Article 124(4) of the Constitution; that the Parliament cannot be the

sanctioning authority for the purpose of s. 6 and if the President is regarded as the authority,he cannot act independently as he exercises his powers by and with the advice of his Council of Ministers and the Executive may ‘misuse the power by interfering with the judiciary that s. 6 applies only in cases where there is master and servant relationship between the public servant and the authority competent to remove him, and where there is vertical hierarchy of public offices and the sanctioning authority is vertically superior in the hierarchy in which office of the public servant against whom sanction is sought exists and that no prosecution can be launched against a Judge of a superior Court under the provisions of the Prevention of Corruption Act except in the mode envisaged by Article 124(4) of the

Constitution. He also contended that no law prohibits a public- servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence only when the public servant is unable to account for it; and that the public servant is entitled to an opportunity by the investigating officer to explain disproportionality between the assets and the known sources of income and the charge sheet must contain such an averment, and failure to mention that requirement would vitiate the charge-sheet and render it invalid and no offence under s. 5(1)(e) of the Act could be made out.

RESPONDENT : The respondent in this case relied on the investigation conducted by the CBI as well as on the charge sheet filed by them and had evidence as to the disproportionate sources of income of the appellant to which the appellant does not deny hence no arguments by them. The only question they had is the competent authority to decide on the case.

Judgement of the case :

1.     A Judge of a High Court or of the Supreme Court is a ‘public servant’ within the meaning of s. 2 of the Prevention of Corruption Act, 1947.

2.     Prosecution of a Judge of a High Court, including the Chief 192 Justice, or a Judge of the Supreme Court can be launched after obtaining sanction of the competent authority as envisaged by s. 6 of the Prevention of Corruption Act.

Per Verma, J. (dissenting)–

1.     Judge or Chief Justice of a High Court is a Constitutional functionary, even though he holds a public office and in that sense he may be included in the wide definition of a public servant. But a public servant whose category for the grant of sanction for prosecution is not envisaged by s. 6 of the Act is outside the purview of the Act, not intended to be covered by the Act.The Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court.

(Per Majority–Ray, Shetty and Venkatachaliah, JJ.)

1.     For the purpose of s. 6(1)(c) of the Prevention of Corruption Act, 1947, the President of India is the authority competent to give previous sanction for prosecution of a Judge of a superior Court.

2.     No criminal case shall be registered under s. 154, Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter.

3.     If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the Government shall consult any other judge or Judges of the Supreme Court.

4.      There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India.

 Verma. J. (dissenting)

1.     Section 6 of the Act is inapplicable to Judges of High Courts or of the Supreme Court and such Constitutional functionaries do not fail within the purview of the Preven- tion of Corruption Act, 1947.

Per B.C. Ray, J.

1.     A Judge of the High Court or of the Supreme Court comes within the definition of public servant under s. 2 of the Prevention of corruption Act, 1947. and he is liable to be prosecuted under the provisions of the Act. 

2.     A Judge will be liable for committing criminal misconduct within the meaning of s. 5(1)(e) of the Act, if he has in his possession pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account. 

3.      Judge of a superior Court will not be immune from prosecution for criminal offences committed during the tenure of his office under the provisions of the Act.

4.     In order to launch a prosecution against a Judge of a superior Court for criminal misconduct failing under s.5(1)(e) of the Act, previous sanction of the authority competent to remove a Judge, including Chief Justice of a High Court, from his office is imperative.

5.     The President of India has the power to appoint as well as to remove a Judge from his office on the ground of proved misbehaviour or incapacity as provided in Article 124 of the Constitution and, therefore he, being the authority competent to appoint and to remove a Judge, of course, in accordance with the procedure envisaged in clauses(4) and (5) of Article 124. may be deemed to be the authroity to grant sanction for prosecution of a Judge under the provisions of s. 6(1)(c) in respect of the offences provided in s. 5(1)(e) of the Act .

6.     In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before 194 him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India.If the Chief Justice of India is of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned, the President shall not accord sanction to prosecute the Judge. This will save the ,fudge concerned from unnecessary harassment as well as from frivolous prosecution against him.In the case of the Chief justice of the Supreme Court, the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. 

7.     In the instant case, the appellant had resigned from his office and ceased to be a public servant on the date of lodging the F.I.R. against him by the C.B.I. and, therefore, no sanction under s. 6(1)(c) of the Act was necessary. R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495, referred to.

8.     A Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary and to maintain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a judge and to maintain the rule of law, even in respect of against the Central Government or the State Government, he is made totally independent of the control and influence of the executive by mandatorily embodying in Article 124 or Article 217 of the Constitution that a Judge can only be removed from his office in the manner provided in clauses (4) and (5) of Article 124.

9.     Power to remove by impeachment or address, a person holding office during good behaviour, is an essential counterpart to the independence secured to the holders of high office by making their tenure one of good behaviour instead of at pleasure. 

10.  A Judge of the Supreme Court or of the High Court can only be removed on the ground of proved misbehaviour or incapacity by an order of the President passed after follow- ing the mandatory procedure expressly laid down in Article 124(4) of the Constitution. Without an address by each of the Houses of the Parliament, the President is not 195 empowered under the Constitution to order removal of a Judge of the Supreme Court or of the High Court from his office on the ground of proved misbehaviour or incapacity. Therefore, the repository of this power is not in the President alone but it is exercised after an address by each of the Houses of Parliament in the manner provided in Article 124(4).Union of India v. Sakalchand, AIR 1977 SC 2328 and S.P. Gupta and Ors. v. President of India and Ors, AIR 1982 SC 149, referred to.

11.  There is no master and servant relationship or employer and employee relationship between a Judge and the President of India in whom the executive power of the Union is vested under the provisions of Article 53 of the Constitution.

12.  It is necessary to evolve some method commensurate with the grant of sanction in cases of serious allegations of corruption and acquisition or the possession of disproportionate assets which the Judge cannot satisfactory ac- count for or possession of property disproportionate to the sources of income of the Judge. Otherwise, it will create a serious inroad on the dignity, respect and credibility and integrity of the high office which a superior ,fudge occupies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public.

13.  The purpose of grant of previous sanction before prosecuting a public servant including a Judge of the High Court or of the Supreme Court is to protect the Judge from unnecessary harassment and frivolous prosecution more particularly to save the Judge from the biased prosecution for giving judgment in a case which goes against the Government or its officers though based on good reasons and rule of law.

14.  Frivolous prosecution cannot be launched against a Judge for giving a judgment against the Central Government or any of its officers inasmuch as such decision does not amount to misbehaviour within the meaning of Article 124 of the Constitution. [226G-H] Shamsher Singh & Ant. v. State of Punjab, [1975] 1 SCR 814 and G.K. Daphtary v.O.P. Gupta, AIR 1971 SC 1132, referred to.

Per Shetty, and Venkatachaliah, JJ.

1.     The expression “public servant” as defined under s. 2 of the Prevention of Corruption Act, 1947 means a public servant as defined in s. 21, I.P.C. From the very commencement of the I.P.C. “Every Judge” finds a place in the categories of public servant defined under s. 21 and this expression indicates all Judges and all Judges of all Courts. It is a general term and general term in the Act should not be narrowly construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore excluded from the definition of ‘public servant’

2.      A public servant cannot be prosecuted for offences specified in s. 5 of the Prevention of Corruption Act, 1947, unless there is prior sanction under s. 6 for prosecution from the competent authority.

3.      There are two requirements for the applicability of clause (c) of s. 6(1) to a Judge of the higher judiciary–the Judge must be a public servant, and there must be an authority competent to remove him from his office. If these two requirements are complied with, a Judge cannot escape from the operation of the Act.

4.     The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is required. There is no law providing protection for Judges from criminal prosecution.It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable. [252D-E] The “proved misbehaviour” which is the basis for removal of a Judge under clause (4) of Article 124 of the Constitution may also in certain cases involve an offence of criminal misconduct under s. 5(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. 

5.     For the purpose of s. 6(1)(c) of the Act, the President of India the authority competent to give previous sanction for the prosecution 197 of a Judge of the Supreme Court and the High Court.

6.      Section 6(1) brings within its fold all the categories of public servants as defined in s. 21 of the I.P.C.

Considering the views above, the appeal therefore stood dismissed because the Court not being the competent authority to decide on the matter and the authority competent be decided by the Parliament,President along with the consultation of Chief Justice of High Court and Supreme Court.

Effect of the Judgement : 

A need was felt for a law providing for trial and punishment of a superior Judge who is charged with the criminal misconduct of corruption by abuse of his office. The Parliament being the sole arbiter, it was for the Parliament to step in and enact suitable legislation in consonance with the constitutional scheme which provides for preservation of the independence of judiciary and to expand the field of operation of the existing law to cover the superior Judges by usurping the legislative function of enacting guidelines since without the proposed guidelines the existing legislation cannot apply to them.

Case comments : 

There really is a need for an authority competent to remove the Judges of the subordinate, High court and Supreme Court under this Act. I totally agree with the view of dismissing the appeal since there was no authority who can grant the sanction for prosecution in case of criminal misconduct and taking no action except from removal of the Judge is also not appropriate. A punishment is also needed to be prescribed and the Judge being a public servant,even harsher punishments need to be enacted.