Begging  A  Social  Issue  Cum  Social  Menace -- A  Study

(By Yadukrishnan B, Advocate, High Court of Kerala)

“Begging would have been the best option if God had given talents to only a selected few. Fortunately, He gave us all our compatible gifts respectively, so it is an offence to be a chronic beggar” -- Israelmore Ayivor, A Ghanaian Author

Begging is one of the most serious social issues in India. In spite of its rapid economic growth, India is a poverty-driven country, which is also leading to the growth of beggars in the country. Most of them come from Bangladesh and some of them are from various parts of India. There are a few beggars in the country who actually are the real ones, who beg because they are handicapped, because of their inability to work or because they are old or blind or because they really need money for basic needs. There are many others who live far below the poverty line and opt for begging to earn their livelihood. There are some cases in which the entire family is involved in begging. The family members keep on increasing with marriage and birth and each of them gets into begging on streets or temples and church premises. Children of such families do not go to school but only beg. They have to do begging because their family’s income is not enough to feed the entire family in a day. Here, poverty is one big reason for such a situation. But at the same time, begging is not the solution for such a situation.

Begging  in  India  as  a  Scam

Poverty is real in India but not begging. Begging in India has become a big racket in the country. For many, begging is just like any other profession. They go out to earn money, not by working, but by begging. In fact, there are begging gangs in cities like Delhi, Noida, Gurgaon, Mumbai, Kolkata, Chennai etc. These gangs have their own gang leaders. Each leader allots a particular territory for a group of beggars and the day’s earnings are shared among them. The gang leader keeps the larger share. These beggars are so involved in begging that they do not want to work elsewhere. It is strange but true that some of these beggars earn in thousands and lakhs, much more than a normal middle class worker.

It is very difficult to find out who is a real beggar and who is not, because looks are very deceptive. Even the children with their shabby faces with pleading looks are properly trained to beg and look real. Sometimes, our heart melts when we see a young woman holding her tiny baby, begging on the streets. In most cases, the baby is found sleeping. This is a scam. Many sting operations have revealed that babies are rented to give credibility to begging. Sometimes, babies are drugged for the entire day, so that, they look sick and they can be easily carried from one area to another by the young women beggars.

The beggars are trained to become very persistent while begging that you are bound to give them money. This is especially true for foreigners when they do not know how to react in such situations and ultimately give money to the beggars. Some of the young beggars also become anti-social elements of the country. They get into drugs. To buy drugs, they start with begging first, then slowly graduate to pick pocketing and then move on to bigger scams like robbing and killing.

Begging  in  Kerala

Regarding begging in Kerala, majority of the beggars are from neighbouring States, especially from Tamil Nadu. The poor from these States are attracted by the comparative richness of Kerala and undertake this as relatively easy way ofliving. It has been reported that many come in the morning train and get back to their villages by evening train like people in any other job. There have also been reports about the beggars living in rented lodges. The rising burglaries in the State have also been attributed to their increased number. The Kochi and Thiruvananthapuram Corporations have taken the right step by banning begging. Other local authorities should follow suit to end the menace. Regarding rehabilitation, the State needs to support only those who hail from Kerala. Beggars hailing from neighbouring States should be sent back to their native places. This will minimize the financial impact on the State’s exchequer. Recent news with respect to begging in Kerala is that it has been almost abolished in Thiruvananthapuram district from January onwards. In what is perhaps a unique achievement for any district in the country, the Kerala capital will now be devoid ofbeggars, following what the social welfare department officials claim to be the result of a year - long effort to root out beggary. The new project to eradicate begging had its roots in the Juvenile Justice Act and when the authorities in the Kerala capital set their minds to end begging by children, they found that there were only a few hundred children being used by the beggary mafia to seek alms. Begging as a social menace is a deep rooted problem.  In Ernakulam district it has become a serious social issue. In almost all the corners of shops. establishments, hospitals and hotels we find these beggars. The pity is that we are not getting sentimental to these people. Most of them are from outside Kerala and majority are women. We cannot find any problem with respect to their health and life situation. The problem is that they are considering begging as a job by depending uponothers. One thing the Government must do is to rehabilitate these persons from streets,otherwise send them to some shelter homes. Most of these beggars are strong and somewhat healthy. The accute problem faced by Kochi City is the growing concern of beggary. Poverty was the major cause of beggary sometimes before. But now it is not the major cause. The authorities have to conduct a thorough investigation about these street beggars and find their whereabouts.

Bombay  Prevention  of  Begging  Act,  1959

In India it is a crime to beg and the statute for this has been coded in the Bombay Prevention of Begging Act, 1959 which has been adopted by many States in our country. It has been extended to the Union Territory of Delhi (National Capital Territory of Delhi) on 2nd June, 1960. Unfortunately this has become archaic now and not just because it dates back to 1959 but because the punitive as well as rehabilitative measures are not coherent with the current scenario. Say for example, until our Parliament had passed and enacted the Criminal Law (Amendment) Act, 2013 which provides for an imprisonment of not less 20 years for rape convicts, the imprisonment for a convict of beggary (10 years) was more than what a rape convict would get (7 years). As a matter of fact, those dependant on the beggar is detained if the beggar is arrested. Even the definition of beggary is not appropriate in the law which causes trouble in identification and estimating the exact beggar’s population in our country.

Prominent  Features  of  the  Act:

•   Beggars may be arrested without warrant

•   They can be sentenced to jail without trial or may be sent to shelter homes/certified institutions

•   The punishment tenure for beggary rangesfrom 3-10 years in jail

•   Court may order detention of persons wholly dependent on beggar

•   Penalty for employing or causing persons to beg or using them for purposes of begging

•   Provision for the teaching of agricultural, industrial and other pursuits, and for general education and medical care of the inmates of the Receiving Centres/Certified Institutions

•   As per the Act, if any beggar detained in a Certified Institution is found to be of unsound mind or a leper, she/he can be ordered to be removed to a mental hospital or leper asylum as per provisions of the Indian Lunacy Act, 1912 and the Lepers
Act, 1898.

Growing Concern: The Ministry of Social Justice and Empowerment, concerned by the high number of beggars flocking the cities, has sought information from the States and Union Territories about schemes and welfare measures adopted by them to check beggary. Though, a number of States and UTs have enacted welfare measures through executive orders, but the data on their implementation status is unavailable. More surprising is the fact that even the National Crime Records Bureau has no data to throw light on the figures of beggar’s population in India.

Identification Issue: Identification of beggars is a challenge as the definition of beggars in the Bombay Prevention of Begging Act, 1959 provides no watertight classification of beggars. Hence, the homeless people and landless labourers who migrate to metros and bigger cities to look for means of subsistence, destitute people and other categories of people are tagged as beggars. Out of the inmates of 207 shelter homes in Delhi, only 10% are actually beggars. Old and ill people live there too and this also sometimes result in people becoming drug addicts and alcoholics. Moreover, rehabilitation mechanisms are absent for those detained and Right to Food cannot be extended to them, while infact they are as vulnerable (perhaps more) as all those who are being brought under the ambit of the noval and noble Right to Food Act.

The Racket of Beggary: Beggars are not atomic units on streets but a tiny unit of the vast beggary rackets being run by the mafia. So, the crime is not just the begging, but the act of pushing people into this down-hole and making money out of it.

Violation of Fundamental Rights: The proponents of Anti-Begging Act call it a rehabilitative process, but the fact is that most of the times, it is coercive, taking away one’s freedom of choice. But, it is perhaps a matter of perspective- a debatable issue as in today’s polity, phrases like “arrested without warrant” and “sentenced without trial” are an anomaly to today’s advanced judicial system and at the same time attract the eyes of the proponents of human rights. In the Indian Penal Code, punishment is equally stringent to persecution of convicts of beggary than set for much heinous crimes like attempt to murder, rape, culpable homicide not amounting to murder, acid attacks on women, etc. A comparable term of punishment for beggary is unjustified. On the other side, it is not only the beggar’s fundamental rights which are being violated, but also of the people who are coaxed into giving alms to them. Beggars touch the people, catch them by hands and chase them endlessly embarrassing them on streets. They blabber curses on those shooing them away. People helplessly end up digging their pockets.

Back in 2010, when Delhi hosted the Commonwealth Games and hosted thousands of international guests, there was a deporting drive undertaken in which beggars were deported from the capital to their original States. Shameless as it sounds this act undertaken by the Government by-passed the institutional mechanisms, the democracy of the people and the right to life and personal liberty of a proportionately large section of Indian population. All this need a redressal in a constitutionally viable, legal, and result oriented way. Skill development, rehabilitation, education, vocational training and other such aspects should be focused upon while designing a mechanism to deal with this deep rooted problem.

 What should we do?

Begging has grown at a significant rate in India. It is estimated that half a million people in India are beggars. The Government, varied organizations, activists claim that many measures have been taken to abolish begging and it has been successful to a certain extent. But the trend of begging still continues. We are also to be blamed. We as Indians are very orthodox, God-fearing and have a religious frame of mind. This compel us to do charity. And one easy way is to visit a nearby temple and give alms to the beggars there.

But as the citizens of this country, it is our moral responsibility to stop this menace and the best way is to stop giving alms. It might seem that we are very heartless in not giving money to a little child begging on the street, but this is one step that we can take to prevent begging. If more and more people come out and take a pledge that they are not going to give a single penny to any beggar, irrespective of their need. I am sure, beggary will then be completely uprooted from our country. Meanwhile, let the Government continue with its poverty alleviation schemes and make India a better place to live in.

As begging is a federal subject, respective States where begging is a social menace can enact suitable comprehensive legislation to ban begging. Kerala does not have such a comprehensive legislation and the State can think about it by banning begging on streets as well as making out efficacious measures to rehabilitate the begging citizen by improving their skill and craft to indulge in other works and avocation which they are capable of doing.

'Royalty' A Proprietary Right or Prerogative Right

(By M.K.S.Menon, Advocate, Supreme Court of India)

This Article is attempting to analyse the hardship that is faced by the litigants in a case that was referred to a 9 Judges bench because the delay caused in getting the matter heard, invariably results in grave injustice.

“Mineral Area Development Authority etc. v.  M/s. Steel Authority of India & Ors” reported in (2011 (2) KLT Suppl. 2 (SC) = (2011) 4 SCC 450), referred India Cement’s case reported in ((1990) 1 SCC 12) to 9 Judges Bench ;

ORDER

Having heard the matter(s) for considerable length of time, we are of the view that the matter needs to be considered by the Bench of Nine Judges. The questions of law to be decided by the Larger Bench are as follows:

1. Whether ‘royalty’ determined under Sections 9/15(3) of the Mines and Minerals (Regulation & Development) Act, 1957 (Act 67 of 1957, as amended) is in the nature of tax?

2. Can the State Legislature while levying a tax on land under Entry 49 List II of the Seventh Schedule of the Constitution adopt a measure of tax based on the value of the produce of land? If yes, then would the Constitutional position be any different in so far as the tax on land is imposed on mining land on account of Entry 50 List II and its interrelation with Entry 54 List- I?

3. What is the meaning of the expression “Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development” within the meaning of Entry 50 of List II of the Seventh Schedule of the Constitution of India? Does the Mines and Minerals (Regulation & Development) Act, 1957 contain any provision which operates as a limitation on the field of legislation prescribed in
Entry 50 of List II of the Seventh Schedule of the Constitution of India? In particular, whether Section 9 of the aforementioned Act denudes or limits the scope of Entry 50 of List II?

4.  What is the true nature of royalty/dead rent payable on minerals produced/mined/extracted from mines?

5. Whether the majority decision in State of West Bengal v. Kesoram Industries Ltd. and Ors, ((2004) 10 SCC 201), could be read as departing from the law laid down in the seven Judges Bench decision in India Cement's Ltd. and Ors. v. State of Tamil Nadu and Ors.,((1990) 1 SCC 12)?

6. Whether “taxes on lands and buildings” in Entry 49, List II of the Seventh Schedule to the Constitution contemplate a tax levied directly on the land as a unit having definite relationship with the land?

7. What is the scope of the expression “taxes on mineral rights” in Entry 50, List II of the Seventh Schedule to the Constitution?

8. Whether the expression “subject to any limitation imposed by Parliament by law relating to mineral   development” in Entry 50, List II refers to the subject matter in Entry 54, List I of the Seventh Schedule to the Constitution?

9. Whether Entry 50, List II read with Entry 54, List I of the Seventh Schedule to the Constitution constitute an exception to the general scheme of Entries relating totaxation being distinct from other Entries in all the three Lists of the Seventh Schedule to the Constitution as enunciated in M.P.V. Sundararamier & Co. v. State of Andhra Pradesh & Anr. ((1958) 1 SCR 1422) at 1481 (bottom)?

  10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development & Regulation) Act, 1957 made in terms of Entry 54 of List I of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under Entry 23 of List II and/or Entry 50 of List II?

  11. What is the effect of the expression “...subject to any limitation imposed by Parliament by law relating to mineral development” on the taxing power of the State Legislature in Entry 50 of List II, particularly in view of its uniqueness in the sense that it is the only entry in all the entries in three Lists (Lists I, II and III) where the taxing power of the State Legislature has been subjected to “any limitation imposed by Parliament by law relating to mineral development”.

Before concluding, we may clarify that normally the Bench of five learned Judges in case of doubt has to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (See: Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr.(2005 (1) KLT 486 (SC).  However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of West Bengal v. Kesoram Industries Ltd.& Ors.(supra)which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by seven Judges Bench of this Court in India Cement's Ltd.and Ors. v. State of Tamil Nadu & Ors. (supra) reference to the Bench of nine Judges is requested. Office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders.

Part  I

1. Legislative competence of the State Governments to impose tax on minerals and mineral rights had always bothered Hon’ble Supreme Court from the very inception of our Constitution. Even after 7 Judges bench judgment in India Cement’s case reported in ((1990) 1 SCC 12), the question as to whether the State’s prerogative to impose tax under our federal system can be restricted by the Central Government through a declaration under Section 2 of Mines and Minerals Development and Regulation Act 1957 is still bothering Hon’ble Supreme Court.   The question is as to whether the power of “regulation and control”  being a general power can encroach upon the State Government’s power of taxation, reason being the power of taxation is regarded as distinct matter and is separately set out and more so when power to tax  cannot be deduced from a general legislative entry as an ancillary power. Entry 50 of List II enables the State to impose tax on mineral rights subject to any restriction imposed by Parliament relating to mineral development. Then the moot question is as to whether a general declaration under Section 2 is sufficient to denude the power of the State to impose Tax on mineral rights. There is nothing in the MMRD Act 1957 imposing a specific embargo against such imposition of tax and the wording in Section 2 of MMRD Act 1957 reads as follows:

“ 2.  It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter  provided.”

Then the question is as to what extent power to impose “tax on minerals and mineral rights” are provided in the MMRD Act 1957. When imposition of tax is not covered by any of the provisions in the MMRD Act 1957, then can it be said that it restricts the power under Entry 50 of List II. This is the larger issue to be decided by the 9 Judges Bench. However incidentally as an offshoot, another issue also cropped up. i.e., whether “royalty” is tax or not. “Royalty” is always considered as the proprietary right vested in the owner and the MMRD Act 1957 is not an exception. Sections 17 and 17-A of the Act throw enough light on this aspect. 

2. Regarding the proprietorship of mines and minerals, a recent 3 Judges bench decision cleared the air misted up by a wrong presumption that all minerals are vested with the Government. In a case argued by the author and Judgment written by Justice Chelameshwar in Tressiamma Jacob v. Geologists reported in  (2013 (3) KLT 725 (SC)) laid down the concrete proposition of law on ownership on mines and minerals by reckoning the first principles from Halsbury’s Law of England and Broom's Legal Dictionary, holding that the owner of the surface of the land is also the owner of the minerals beneath unless it is vested in the Government through a known process of law.

3. Definition of “Estate” in Article 31-A of the Constitution created havoc at one of point time while interpreting “Proprietary Right” and “Prerogative Right”. Classic example is the case of Karambil Kunhikoman v. State of Kerala reported in (1962 KLT 42 (SC)) a judgment which resulted in the 17th Constitutional Amendment, amending Article 31-A so as to include ‘ryotwari settlements’  in the definition of “Estate”.  This has happened because courts below blindly adapted the propositions laid down in some judgments as legislations. Hon’ble Supreme Court always cautioned us on two aspects. (i) that a judgment cannot be read as a legislation and normal rules of interpretation or statutes is  not applicable while interpreting judgments. (ii) that a definition appearing in the Constitution is intended to interpret the Constitution alone and it cannot be applied while interpreting a Statute. (Madhav Rao Scindia  v. Union of India reported in (AIR 1971 SC 530). Any how the first post Independence agrarian reform enactment of Kerala namely Kerala Agrarian Relations Act 1960 was declared as unconstitutional due to a wrong interpretation of the word “Estate” appearing in Article 31-A of the Constitution by the Full Bench of the Kerala High Court in the case of Shukapuram Sabhayogam v. State of Kerala reported in ((1962 KLT 924 (F.B.)). Ryotwari Settlements were declared as government lands given in lease to the proprietors of the soil because it was declared that the Ryotwari owners are not proprietors of the land even though they are enjoying almost all the rights of a proprietor. This decision discussed the concept of “absolute proprietorship” while interpreting the word “ESTATE” in Article 31-A of the Constitution on the basis of local equivalent. There the Full Bench of the Kerala High Court went wrong in following Karambil Kunhikoman’s case reported in  (1962 KLT 42 (SC)) without appreciating the fact that (1962 KLT 42 (SC))  relied on the local equivalent from the Madras Estate Act 1908 and  that was not applicable to Malabar forming part of Madras State prior to State re-organisation. Most importantly the Full Bench was not informed of the fact that in Malabar, relationship between Ryotwari pattadar and its tenants were governed by Malabar Tenancy Act 1929, as appearing in the Madras Administrative Reports.  High Court proceeded to decide the issue by following  (1962 KLT 42 (SC)) a judgment based on Madras Estate Act 1908 where as the case ought to have been decided on the basis of Malabar Tenancy Act 1929. However the proposition laid down by the Kerala Full Bench in that case was wrong and happened to be contrary to what has been declared by the Hon’ble Supreme Court in a later judgment in the case of India Cement's v. State of Tamil Nadu reported in ((1990) 2 SCC 12) in which 7Judges of the Hon’ble Supreme Court declared that “Rajabhogam” namely “share in the produce”, claimed by the State during British Regime was only a “Prerogative Right” and not a “Proprietary Right”. “Share in the produce” was quite often misunderstood as “rent” pertaining to “proprietary right” and in fact it was clarified by the 7 Judges Bench as “revenue”  reckoning “prerogative right” of the State. Despite this clarification given by the larger bench in India Cement’s case at para 20, still the confusion continued due to one observation in paragraph 34 of the judgment to the effect that “Royalty is a Tax”. 

Part II

4. For reconsideration of a “ratio” in the judgment, Judicial discipline mandates that the smaller bench shall place the matter before the Hon’ble Chief Justice, for constituting a larger bench. This is the practice that is followed by the Higher Judiciary in India as a matter of convention/rule. At the same time one has to appreciate that there is always an exception for every rule. Eg. in a case when factually the earlier bench is not laying down a “ratio” on the facts in issue but logically it appears as though a “ratio” appeared to have been laid down, Supreme Court is not prevented from explaining what is the ratio in an earlier judgment. As per the well settled law as laid down by Hon’ble Supreme Court, the “ratio” is what it actually decides and not what “logically follows from the judgment”. (Ambica Quarry Workers etc. v. State of Gujarat reported in ((1987) 1 SCC 213). In some judgments a particular ratio appeared to have been declared but when analysed subtly, it could be seen that ratio has been declared in vacuum because the legal point decided may not be actually arising for consideration on the facts available in that case. Eg. Minerva Mills case reported in (1980 KLT 573 (SC)  touching upon Article 31-C of the Constitution of India.

5. There is one more important facet to be reckoned at this juncture. Constituting Larger Benches of more than 5 Judges in the Hon’ble Supreme Court is a very cumbersome process. Because of the dearth of Judicial time and personnel to be spared, it is very difficut to constitute larger benches. Larger the bench, lengthier will be the waiting period. Constituting Constitution Benches of 5 Judges itself very often derails the regular work of the Hon’ble Supreme Court which has to find time for various human and social problems.  Very often it is a herculean task for the Hon’ble Chief Justice to take a decision on priorities satisfying various public demands. May be it is time to consider as to whether the current scenario in the Hon’ble Supreme Court as a court of Special Leave where every issue is being agitated be changed, so that it gets enough time to deal with issues of larger public interest and constitutional matters alone. Once it is known to the litigant that the Hon’ble High Court is the last court of appeal, his expectations come to an end there.

6. At the present fluid state of affair, at least certain areas could be streamlined by adopting a more pragmatic approach, that can save valuable judicial time. Not referring “obiter” to larger benches of 5 Judges or more is one among them. Unless it is so unavoidable, it is always better not to refer the matters to larger benches. The author is writing this article after facing such a bizarre situation, where he will have to wait for another couple of decades to get a matter heard in a case in which his client started his journey about 25 years back when he filed a suit at Calicut/Kerala challenging the authority of the State to collect royalty on minerals vested in the private person. Central Enactment namely Mines and Minerals (Development and Regulation) Act 1957 as well as Kerala Minor Minerals Concession Rules 1967 provide that, the owner of the mineral is entitled to collect the “Royalty”. However State disputed the ownership of the private “Jenmies” and also their right to claim “Royalty”. Case when reached at the High Court of Kerala, one of the celebrated Full Bench judgments of 1960s (Shukapuram Sabhayogam reported in (1962 KLT 924 (F.B.)) was referred to larger Bench but the claim of the Jenmies were dismissed by the Bench by following the judgment reported in (1962 KLT 42 (SC)) which declared that in the Ryotwari lands minerals are vested in the Government. In fact neither (1962 KLT 42 (SC)) nor  ((1962 KLT 924 (F.B.) happened to be an authority to the point that all minerals vest in the government. Matter when reached before the Hon’ble Supreme Court, Hon’ble Court admitted the matter but stay was denied. This resulted in the total relapse of the enthusiasm of litigants because they lost their hope of winning the case even after spending lakhs of Rupees. Ultimately the mantle was taken forward by the author and it gave him the best opportunity to find meaning for his lengthiest research of 15 years and finally to get the matter decided by 3 Judges Bench in the Hon’ble Supreme Court. 

7. Matter was taken up by the Hon’ble Bench consisting of 3 learned Judges and finally declared that the “owner of the surface is also the owner of the minerals underneath”. Halsbury’s Law of England as well as Broom's Legal Dictionary came in support of the appellant and finally a judgment was delivered clearing the general misunderstanding that all minerals belong to the Government.  Whenever the case has been taken up, the first obstacle was to rebut the celebrated but the wrong presumption that all minerals are vested in the government. Author had occasion to argue this matter at least before a dozen benches including a Full Bench of Kerala High Court and also before different benches of the Hon’ble Supreme Court. Every bench expressed the same anxiety in upsetting this presumption i.e. “all minerals are vested in the Government".  However every time Section 17 and 17-A (3) of the MMRD Act 1957 came in as a panacea. These Sections were very often overlooked and general presumption was adopted which foreclosed further deliberation.

8. Even after the 3 Judges bench decision, author could not take his case to a logical conclusion because even after the 3 Judges bench judgment of the Hon’ble Supreme Court, the fate of the case remained the same. No final result. Even though the judgment namely Tressiamma Jacob v.  Geologists reported in (2013 (3) KLT 725 (SC)) declared that the owner of the surface of the earth is also the owner of the minerals lying within, the issue of “Royalty” was left open to be decided till the decision in Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in (2011 (2) KLT  Suppl.2 (SC) that was referred to ‘Nine Judges Bench’. There is nothing wrong in waiting in ordinary circumstances but in this case Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in  (2011 (2) KLT  Suppl.2 (SC) has been referred to a Bench of 9 Judges. Possibility of constituting 9 Judges Bench in Supreme Court in the near future is any one’s guess. That means another 25 or 30 years of waiting. This prompted the author to do further research and to move an application to get  the issue agitated separately so that the matter need not wait until the 9 Judges bench has been constituted.

Part III

PREROGATIVE  RIGHT  v.  PROPRIETARY  RIGHT

9. The line between “Prerogative right” and “Proprietary right” often gets obliterated in issues like “royalty on mineral working”. In India Cements' Ltd & Ors. v.  State of Tamilnadu reported in (1990) 1 SCC 12), Seven Judges of the Hon’ble Supreme Court in paragraph 20 clarified that the concept of “share in the produce”, very commonly applied in Madras Presidency is nothing but “revenue” and not “rent”. “Share in the produce” or “Rajabhogam” (Rajabhagam) was the governments share in the produce of the land which they were entitled to claim as revenue. This has been declared as nothing but the prerogative right. This has been misinterpreted quite often earlier and the word “share in the produce” was mistaken as “rent” (Proprietary right).

10. That very doubt still leads to the new controversy and referring of 7 Judges bench judgment in India Cement's Ltd & Ors v. State of Tamilnadu reported ((1990) 1 SCC 12) to a larger bench of 9 Judges. The reason for referring the matter to larger bench is that, in State of West Bengal v. Kesoram Industries Ltd. and Ors., ((2004) 10 SCC 201) another Constitution Bench 5 Judges of the Hon’ble Supreme Court clarified that “Royalty is not Tax”.  Constitution Bench in Kesoram (supra) clarified, that in 7 Judges bench decision in India Cement's (supra) Supreme Court never intended to hold that “Royalty” is “Tax”. However Hon’ble Mr. Justice Sinha was in dissent holding that a smaller bench cannot read down a larger bench decision. However Hon’ble Judges in majority headed by Justice Lahoti had given a wonderful reasoning on the point that India Cement’s case never wanted to hold that “Royalty” is “Tax”. This was done without quoting section 17 and 17-A of MMRD Act and held that Royalty can be claimed by a private person as well and therefore one has to realise that a private person is not vested with prerogative right and therefore cannot impose a tax. In fact in India Cement’s (supra) case,  Hon’ble Supreme Court was not invited to decide and hold that “Royalty is Tax” because that was not an issue in dispute on the facts of the case. The question involved therein was as to whether the State is entitled to impose Cess on Royalty and what is the consequence of such an imposition on the moratorium imposed by Section 2 declaration under the Mines and Minerals Development and Regulation Act 1957. By analysing the facts in that case it could be seen that, in India Cement’s case, State of Tamilnadu imposed a “Cess” on Royalty paid for the excavation of minerals. Hon’ble Supreme Court posed a question to itself that as to whether the said “Cess on Royalty” is justifiable as a demand of “land revenue” or “additional royalty” (Paragraph 11). Hon’ble Supreme Court in the said case set aside levy of cess by holding that levy of cess on royalty results in swelling of Royalty. Since the power to fix the Royalty was vested in the Union alone, the 7 Judges bench held that State cannot interfere with that vested right of the Union under Section 9 (3) of the MMRD Act. In this context Hon’ble Court equated the “Cess” to “enhanced royalty/additional royalty”. It was also declared that cess being a prerogative right but not permissible to be levied due to the Section 2 declaration. Describing the “cess” as “enhanced royalty” created the confusion. The Hon’ble Court held that by imposing tax/cess on royalty, in effect the State is increasing the royalty which they are not entitled to as per the mandate of Section 9. Following observation of Hon’ble Mr. Justice Sabyasachi Mukharji in paragraph 19 of the judgment throw amble light on the journey undertaken by the Hon’ble Supreme Court in India Cement's case (Supra) which reads as follows:

“ 19. Here, we are concerned with cess on royalty. One can have an idea as to what cess is, from the observations of Hidayathulla J., as the learned Chief Justice then was, in Guruswamy & Co. v. State of Mysore where at page 571, the learned judge observed:

“The word ‘cess’ is used in Ireland and still in use in India although the word rate has placed it in England. It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess etc.) indicates. When levied as an increment to an existing tax, the name matters not  for the validity of the cess must be judged of in the same way as the validity of tax to which it is an increment.”    (underlining is by the author)

 In paragraph 30 it is observed as follows:

“30. It seems, therefore, that the attention was not invited to the provisions of Mines and Minerals (Development and Regulation)Act 1957 and Section 9 thereof. Section 9(3) of the Act in terms states that Royalty is payable under the Second Schedule of the Act shall not be enhanced more than once during a period of four years. It is, therefore for, a clear bar on the State legislature taxing royalty so as to effect amend Second Schedule of the Central Act.   In the premises , it cannot be right to say that tax on royalty can be a tax on land , and even if it is a tax, if it falls within Entry 50 will be ultra vires the State legislative power in view of Section 9(3) of the Central Act. In Hingir Rampur Coal Co. Ltd .v State of Orissa, Wanchoo, J. in his dissenting judgment has stated that a tax on mineral rights being different from a duty of excise, pertains only to a tax that is leviable for the grant of the right to extract minerals, and is  not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the State Legislature.”         (underlining is by the author) 

Finally in paragraph 34 it is observed as follows:

“34.   In the aforesaid view of the matter, we are of the opinion that Royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because Section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under Entry 23 of Listed II. In any event, we are of the opinion that cess on royalty cannot be sustained under Entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land.”    (uderlining is by the author).

11. What is prohibited is enhancement of royalty by the State, in view of the bar contained under Section 9(3) of the Act, because in principle it enhances the “Royalty” (refer the quoted portion in para 19 of the judgment). Even though what is levied is a cess, it results in enhancement of the royalty. Neither Entry 23 nor Entry 49 of the List II of Seventh Schedule of the Constitution supports this action on the part of the State Government.  In that context, Hon’ble Court said that as an outcome of the levy, the cess is in the nature of additional royalty since it is enhancing the royalty for the purpose of Section 9 of the Act.  It does not mean, levy of Royalty is an exercise of prerogative right. It only says that, by the exercise of prerogative right in imposing tax/cess, as an end result, it resulted in enhancement of royalty and that the swelling of royalty has gone against Section 9(3) of the Act.  Reading the sentence “Royalty is tax”, out of context, resulted in the current mystification.

12. At this juncture it is necessary to apply all the principles of interpretations that is available to understand and apply a precedent/judgment. While referring the judgment in India Cement's case (supra) to 9 Judges bench to settle the difference of opinion expressed by the 5 Judges bench in Kesoram (supra), Hon’ble Chief Justice was not informed that  the observation “Royalty is tax” is a not a precedent based on the factual question in hand and that it is only an obiter which never binds the subsequent benches of the Hon’ble Supreme Court. Reference order treated the judgment in India Cement’s case (supra) as a precedent to the proposition that “Royalty is tax”. What logically follows is not a precedent. In India Cement's case, 7 Judges never laid down a law to the effect that what was levied by State of Tamilnadu as “Cess on Royalty” in effect is “Additional Royalty”. However by interpretation one will be able to describe it in such a fashion. No doubt, the reasoning for arriving at the conclusion that the levy was unconstitutional appears to be little tricky. That is what logically follows and what logically follows is not a precedent. In that context judgment in India Cement's may need a second look but not for a reason never thought of by the Hon’ble Judges while rendering the judgment in the said case. It is pertinent to mention thatIndia Cement's case (supra) and Kesoram’s case (supra) are dealing with two different situations. In India Cement's case, levy of cess is on Royalty where as in Kesoram the levy is on mineral bearing areas which may be justified for the reasons stated there in the judgment. In effect prima facie there is no conflict on this aspect.  All that Kesoram clarified is that what logically follows as explained above is not the precedent for a proposition that “Royalty is Tax”. They had also referred to the difference between “prerogative right” and “proprietary right” reflected in Section 17 and 17-A of the MMRD Act 1957 but failed to quote the Section.  In nutshell if we presume that reference order in Mineral Area Development Authority etc. v.  M/s Steel Authority of India & Ors. reported in (2011 (2) KLT Suppl. 2 (SC))  lays down that India Cement’s case (supra) is a precedent for the proposition that “Royalty is a prerogative right (Tax)”, then the reference order to that extent is per incurrium  because it failed to consider Section 17 and 17-A of MMRD Act  1957. No doubt that reference order is not a precedent and that the principles of sub silentio will not strictly apply in the context but the fact remains that the said reference order failed to consider legislative provisions finally binding the issue in hand and the reference itself is nothing but a futile exercise on this issue. Hundreds of cases are getting tagged along and justice is denied for no fault of the litigant. Supreme Court long ago declared that ‘Justice delayed’ is ‘justice denied’.

Conclusion:

13. Therefore the reference of India Cement’s case reported in ((1990) 1 SCC 12) to larger bench for reconsideration on the point that “Royalty is tax” could have been avoided because the reference order failed to take into account Section 17-A(3) of Mines and Minerals (Development and Regulation) Act 1957 in which it is provided that private person is entitled to collect royalty when the mineral is vested in him. When a private individual is vested with this right based on title, it is a proprietary right and not a prerogative right. Since imposition of tax is a prerogative right it cannot be vested in a private person. What is Royalty is well settled long back in D.K. Trivedi & Sons v. State of Gujarat reported in (AIR 1986 SC 1323) in which all the dictionaries were referred and it was held that it is the proprietary right of the owner of the minerals, claiming his share of the profit from the removal of the mineral from the mine owned by him.  Secondly, Hon’ble Court cannot give a verdict against Section 17-A(3) of MMRD Act 1957 in the referred matter because the said Section 17-A(3) is not under challenge in any of these cases. The Legislative mandate reflected in Section 17-A(3) will have to be respected and the question has to be put to rest  as early as possible avoiding undue hardship to the litigants.

14. By way of abundant caution it is necessary to mention that this Article intends to deal with only one issue i.e. “Whether Royalty is tax or not” in the reference order in Mineral Area Development Authority etc. v. M/s Steel Authority of India & Ors. reported in (2011 (2) KLT Suppl. 2 (SC)) and the question framed as follows:

 “1. Whether 'royalty’ determined under Sections 9/15(3) of the Mines and Minerals (Regulation & Development) Act, 1957 (Act 67 of 1957, as amended) is in the nature of tax"

Other issues such as:

 “10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development & Regulation)Act, 1957 made in terms of Entry 54 of List I of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under Entry 23 of List II and/or Entry 50 of List II?"

are larger issues and distinct/different, and therefore are not intended to be dealt with in the present Article.

All those cases  which are waiting for a decision in 9 Judges bench on the question as to whether ‘royalty is tax’ can be delinked and heard in the light of Section 17 and 17-A of the MMRD Act 1957.

Anti-Corruption Bureau and Caesar's Wife

(By  V. Ramkumar,  Former  Judge , High  Court  of  Kerala)

After going through the verdict in  Vigilance and Anti-Corruption Bureau Directorate v. Neyyattinkara  P. Nagaraj & Ors.(2015 (4) KLT 640)whichhad virtually de-throned a Cabinet Minister of the State, I am penning down the legalities and illegalities of the said verdict which, in my opinion, could have been rendered after deeper study and research. Some of the findings recorded in favour of the writ petitioner (Directorate of Vigilance and Anti-Corruption Bureau) and some of the findings recorded against the writ petitioner, are in my view, wrong.

2. The finding in paras 10 to 16 of the verdict in question that the Factual Report submitted by the Investigating Officer (“I.O.” for short) in this case is part of the Case Diary (‘C.D.' for short) and, therefore, the Court is entitled to call for and peruse the same during the stage of inquiry or trial, is absolutely correct. This is because the Factual Report in this case was prepared after the registration of the F.I.R. and conclusion of the investigation. The Vigilance Manual also contemplates a Factual Report, inter alia, before the registration of the F.I.R. but after the conclusion of the preliminary enquiry/quick verification. This Factual Report prepared after the preliminary enquiry/quick verification but prior to the commencement of investigation cannot form part of the C.D. But even if the Factual Report, in this case, forms part of the C.D. and can, therefore, be called for and perused by the Court under Section 172(2) Cr.P.C., when the Court even at the stage of trial cannot use the contents of such Factual Report as evidence, is it permissible for the Court at the inquiry stage to rely on and reveal the contents of the Factual Report, is a question which has not been addressed by the learned Judge. So is the position regarding the Scrutiny Report of the Director in the Vigilance set-up which is on similar lines with that of the Central Bureau of Investigation (“CBI” for short).

3. I cannot endorse the reasoning given in paras 18 to 23 of the verdict in question for holding that Para 59 (ii) of the Vigilance Manual (which says that a Vigilance case should be registered within 10 days of getting orders from the Directorate) is not contrary to the Cr.P.C. To substantiate this point the learned Judge has relied on Section 158 Cr.P.C. and G.O.Rt. No. 4/2002/dated 3.1.2002 to hold that the Director of Vigilance And Anti-Corruption Bureau (“VACB” for short) should be deemed to be a superior police officer appointed under Section 158(1) Cr.P.C. and such superior officer has the power under Section 158(2) Cr.P.C. to give appropriate instructions to the I.O. This view is, according to me, wrong. Even if by the State Government approving the Vigilance Manual as per the above G.O., the Director could deemed to be a superior police officer appointed under Section 158(1) Cr.P.C., his power under Section 158(1) Cr.P.C. is only to submit before Court the report of the Officer-in-charge of the Police Station ( “SHO” for short) under Section 157(1) Cr.P.C.,  provided the State Government so directs. The Vigilance Manual or the G.O. referred to above do not direct that the report of the SHO under Section 157 (1) Cr.P.C. shall be submitted to the Court through the Director. Under Section 158(1) Cr.P.C., the only role given to the superior police officer is to submit the above report before the Court, and that too if the State Government so directs. Then the further role given to the superior police officer under Section 158(2) Cr.P.C. is not to give instructions to the SHO throughout the stage of investigation as has been assumed by the learned Judge. The instructions envisaged by Section 158(2) Cr.P.C. is only on matters touching the question whether the SHO should or should not enter on an investigation under Section 157(1) Cr.P.C. and the superior police officer has to record on the report his instructions, if any, so given and transmit the report without any delay to the Court. When the superior police officer has not been directed by the Government to transmit the report of the SHO to the Court, the question of such superior officer giving instructions to the SHO also does not arise. This is not a case where the superior police officer had taken over the investigation. Hence the power, if any, of the Director to give instructions to the I.O.during and after investigation, has to be located elsewhere. In any view of the matter, after the decision of the Constitution Bench of the Supreme Court in Lalita Kumari v. Government of U.P. & Ors.  (2013 (4) KLT 632 (SC) = (2014) 2 SCC 1), when the information received by the SHO is regarding the commission of a cognizable offence, then the SHO has no other alternative except to register an F.I.R. (save in those enumerated cases where he may conduct a preliminary enquiry. Of course, with utmost respect, I wish to say that I have my own reservations about the ruling in Lalita Kumari to the effect that the scope of preliminary enquiry is only to find out whether a cognizable offence is alleged in the information and that the veracity or otherwise of the information is foreign to the scope of preliminary enquiry. Corruption cases is one of the enumerated category of cases in which a preliminary enquiry is justified. It is pertinent to note that all the offences under the P.C. Act, 1988 are cognizable offences and if so in a case where the information given is regarding the commission of an offence under the P.C. Act, no preliminary enquiry may be necessary. The Constitution Bench having approved P.Sirajuddin v. State of Madras ((1970) 1 SCC 595) which in turn was apprehensive of the incalculable harm that could cause to a public servant and to the department he belonged unless prima facie evidence of guilt was made out before registering an F.I.R., was oblivious of the purpose behind the preliminary enquiry. Disgruntled elements who couldn’t curry favours from a public servant will be too willing to bolster up false cases against the public servant. The position of doctors will be still worse).Thus, Para 59(ii) of the Vigilance Manual which insists on the order of the Directorate for registering the F.I.R. is contrary to Section 154(1) Cr.P.C. as judicially interpreted in Lalita Kumari.

4. In paras 25 and 26 of the verdict in question, after extracting paras 89 and 120.6 of Lalita Kumari (supra) the learned Judge has concluded as follows:-

It was categorically held by the Constitution Bench that the provisions of the C.B.I. Manual overrides the provisions of the Code of Criminal Procedure.

I did not find such a proposition of law laid down in Lalitha Kumari. In para 89 of Lalita Kumari itself what is observed is that the C.B.I. Manual is not a statute, but only a set of administrative instructions for the internal guidance of the C.B.I. officers and it cannot supersede the Cr.P.C. The further observation in Lalita Kumari that the C.B.I. is constituted under the Delhi Special Police Establishment Act, 1946, (‘DSPE Act” for short) and derives its power to investigate under that Act and the powers of the C.B.I. under the DSPE Act cannot be equated with the powers of the regular State Police under the Cr.P.C., does not mean that the C.B.I. Manual overrides the Cr.P.C. This is particularly so, since neither the DSPE Act nor the P.C. Act, 1988, prescribes a different procedure for investigation by the police and, therefore, by virtue of Section 4(2) Cr.P.C., it is the Cr.P.C. which will apply regarding the procedure for investigation. In para 4 of M.C. Mehta v. Union of India (2008 (2) KLT Suppl. 628 (SC) = (2007) 1 SCC 110 a three Judge Bench of the Apex Court has categorically held that the C.B.I. Manual is subject to the provisions of Cr.P.C. and in case of a conflict between the two, the Cr.P.C. shall prevail.

5. Para 72(1) of the Vigilance Manual reads as follows:-

“72(1). After completion of the investigation a report giving the facts, evidence and circumstances in each case (both for and against the prosecution) shall be forwarded by the Deputy Superintendent of Police to the Superintendent of Police concerned, who will forward the same along with his Forwarding Endorsement to the Director, through the IGP/DIP of Police concerned for further transmission to Government (In cases personally investigated by the Superintendent of Police or other senior officers, the Factual Report will be prepared by them.). The final decision on a Factual Report either to prosecute an accused or subject him/them to an enquiry by Vigilance Tribunal or otherwise will be taken at the Directorate after assessing the quality and quantum of evidence”.

After extracting Section 173(3) Cr.P.C. in para 27, the learned Judge observes in para 28 that the Superior Police Officer appointed under Section 158(1) Cr.P.C. has got the power to scrutinise the final report in case of a general or special order to that effect. In para 29 of the verdict in question the learned Judge specifically held that there is no conflict with regard to the power of the Director under para 72(1) [wrongly mentioned as Section 72(1)] of the Vigilance Manual and Section 173 (3) Cr.P.C. But the learned Judge had already held in para 24 that the Factual Report submitted by the I.O. is not the final report under Section 173(2) Cr.P.C. If the Factual Report is not the final report and if what the Director, as superior Police Officer, can scrutinise under Section 173(3) Cr.P.C. is only the final report and not the Factual Report, then there is an apparent conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.P.C. In para 29 itself the learned Judge has found that the Director has not gone through the final report in this case. If as a matter of fact, there is no conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC, then there is no dispute that as per para 72(1) of the Manual the final decision on a Factual Report either to prosecute the accused or to subject him to an enquiry by the Vigilance Tribunal or otherwise, will have to be taken at the Directorate and not by the I.O. That was precisely what the Director did in this case. If, as found by the learned Judge, there is no conflict between Para 72 (1) of the Vigilance Manual and Section 173(3) Cr.P.C., then what the Director did, namely, directing the I.O. to file the final report before Court after considering the foregoing discussion in the Scrutiny Report of the Director would be perfectly valid. But the learned Judge has contradicted himself by saying in Para 31 of the verdict that the Director has virtually substituted the opinion of the I.O. with his opinion in the final report. In the last paragraph the learned Judge has remarked that as per para 72(1) of the Vigilance Manual and Section 158(2) Cr.P.C. the Director can give timely directions to the I.O. only during investigation and not after that. Accordingly the learned Judge concluded that the Special Judge was right in ordering further investigation which ought to have been ordered by the Director instead of directing the I.O. to file a final report in tune with the scrutiny report.

6. I am afraid that the learned Judge has missed the scope and amplitude of Sections 158 and 173(3) Cr.P.C. and Para 72(1) of the Vigilance Manual. As already stated, the purpose of appointing a superior police officer under Section 158(1) is for the limited purpose of submitting before Court the report of the SHO under Section 157(1) and his power to give instructions to the I.O is not available to him throughout the stage of investigation. His role ends with the submission of the report with the instructions, if any, given by him and recorded on the report. Even this power he can exercise only if he is directed to do so by the State Government. Likewise, if such a superior police officer has been appointed under Section 158(1) Cr. P.C., the final report under Section 173(2) Cr.P.C. also can be filed through him before Court and that again if the State Government so directs. (See Section 173(3) Cr.P.C.). Para 72(1) of the Vigilance Manual serves a totally different purpose. Although the Factual Report by the I.O. is not the final report under Section 173(2) Cr.P.C., it is a report submitted after the completion of investigation by the I.O. It should not only contain the incriminating evidence and circumstances but also the exculpating circumstances (i.e. both for and against the prosecution). If it were to precede a refer report or a closure report it need only contain the circumstances against the prosecution and if it were to precede a charge-sheet, then it need only contain the incriminating circumstances. Para 72(1) further says that the final decision on the Factual Report either to prosecute the accused or to subject him only to an enquiry before the Vigilance Tribunal will be taken at the Directorate after assessingthe quality and quantum of evidence. This is the organisational set up of the Vigilance Department which is on similar lines with that of the C.B.I. Even if the Director were to be treated as a superior police officer within the meaning of Section 158 Cr.P.C., in the absence of a Government direction to the Director to file the report under Section 158(1) or Section 173(3) Cr.P.C., he cannot submit both the said reports. The SHO or the I.O. himself should file those reports. The power under Section 36 Cr.P.C. may, perhaps, cloth the Director to oversee the investigation by the I.O. and issue appropriate directions or guidelines to the I.O. The decision of the Apex Court in R. Sarala v. T.V. Velu  (2000 (2) KLT SN 34 (C.No. 40) SC =(2000) 4 SCC 459also indicates that it is not the Public Prosecutor but the Superior Police Officer who has to advise the I.O. in the matter of investigation and the role of the Public Prosecutor is inside the Court. InReghuchandrabal v. State of Kerala (2009 (4) KLT 245), Mr. Justice M. Sasidharan Nambiar held that the Factual Report submitted by the I.O. is not the final report and the Government on receipt of the Factual Report through the Director of Vigilance, were entitled to disagree with the opinion of the I.O. to file a refer report and that eventhough what the Home Minister ordered in that case was re-investigation, it was rightly clarified by the Director of Vigilance that the proper course open was to conduct further investigation under Section 173(8) Cr.P.C. The direction by the Director of Vigilance to the I.O. to conduct further investigation, was accordingly upheld by the High Court of Kerala. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke  (2015 (1) KLT SN 51 (C.No. 68) SC = (2015) 3 SCC 123), the situation was almost identical except that in the place of the Director of Vigilance it was the Director General of Vigilance in the State of Maharashtra where also there is a similar set-up in the Vigilance Department. In that case the I.O. submitted a Factual Report proposing to prosecute A1 (a Sub Divisional Magistrate) and A2 (Sheristadar of the SDM) for offences under Sections 7 and 13(1)(d) of the P.C. Act. In the case of A1, the Director General of Vigilance disagreed with the I.O. and held that A1 could not be prosecuted since there was only evidence of acceptance of bribe and there was no evidence of demand of bribe and that the authenticity of the electronic evidence (compact disc) was not proved according to law. The Vigilance Special Judge agreeing with the view of the Director General of Vigilance, accepted the closure report as against A1. At the instance of the de-facto complainant the Bombay High Court set aside the order of the Special Judge dropping the proceedings against A1 and directed that A1 was also to be prosecuted. In further appeal before the Apex Court, the view of the Special Judge was preferred by the Supreme Court to that of the High Court. If these two decisions were adverted to and followed by the learned Judge, he could not have found fault with the Director who had faithfully adhered to Para 72(1) of the Vigilance Manual without in any manner exceeding his limits. There is not even a whisper of the above binding decisions in the verdict in question, in spite of the fact that those citations were specifically pleaded in the Writ Petition (a copy of which was got down and perused by me). If according to the learned Judge there is no conflict between Para 72(1) of the Vigilance Manual and the Cr.P.C. and if as per Para 72(1) and as per the aforesaid binding precedents, the Director of Vigilance was entitled to take a decision as to whether the accused was to be prosecuted or not after assessing the quality and quantum of evidence and after studying the law on the point, the criticism made by the learned Judge in paras 29 and 31 against the Director, Mr. Vinson M. Paul (known for his unquestionable integrity and impartiality) even without hearing him, that the Director does not have unbridled power to direct the I.O. to file a final report in a particular manner, was uncalled for, being opposed to Para 72 (1) of the Vigilance Manual and the binding judicial verdicts adverted to above. It is significant to note that in the Scrutiny Report the operative portion of which has been extracted in para 5 of the reported decision, the Director has not directed the I.O. to file a refer charge or closure report. He has only directed the I.O. to file the final report before Court after considering the foregoing discussions in the Scrutiny Report. The I.O. evidently on being convinced about the absence of the necessary ingredient in the offences alleged, was, without demur filing a closure report for dropping the proceedings. One fails to see as to how the learned Judge could refuse to advert to the binding judicial precedents covering the field and embark upon a different interpretative exercise brushing aside the aforesaid precedents. If the rulings cited by the writ petitioner were to be followed, then whatever the Director of Vigilance did was perfectly legal and in accord with Para 72(1) of the Vigilance Manual. Of course, the final opinion formed by the I.O. either to prosecute or not to prosecute the accused may not be binding on the Court. Depending on the materials collected by the I.O. during the investigation, the Court has the right to differ from the final opinion reached by the I.O. and either drop the proceedings or take cognizance of the offences, if any, revealed or direct a further investigation. (Vide M/s. India Carat Pvt. Ltd. v. State of Karnataka  (AIR 1989 SC 885 (3 Judges); Gangadhar Janardan Mhatre v. State of Maharashtra  (2004 (3) KLT SN 77 (C.No.107) SC =(2004) 7 SCC 768); Minur v. State of Bihar (AIR 2006 SC 1937); Aleque Padamsee v. Union of India  (2007 (3) KLT 1028 (SC) =(2007) 6 SCC 171)).

7. What was the great hurry in handing down the verdict without adequate study or research and topple the Vigilance set-up in the State which has been in vogue for more than two decades? The force which presumably impelled the Vigilance Directorate to approach the High Court consequent on the Special Judge finding fault with the Director in acting according to Para 72(1) of the Manual, has been repressed with double vigour by the verdict in question. The organisational framework and equilibrium of the Vigilance Directorate stands dislocated and the operational freedom of the Director under the Vigilance Manual stands curtailed on a reasoning which unfortunately does not coincide with the law as judicially settled.

8. In para 39 of the verdict in question destroying the homogeneity of the judgment we find the following observation:-

“39. I am reminded of the Shakespearian saying that ‘Caesar’s wife must be above suspicion’ . The fundamental principle that justice is not only done but it should appear that it is done, is applicable not to the judiciary alone; whereas, it is equally applicable to the other two pillars of the State also. In a case like this, it is quite natural that the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister.”

Thereafter, the learned Judge left the question to the conscience of the accused. The innuent message is loud and clear. While it is unfortunate that in this country the media presumes every person accused of an offence to be guilty, a court of justice should be free from any such predilection. I refrain from making any comment on the legality, morality or propriety of the above observation made in a Writ Petition filed by the Directorate of Vigilance and Anti-Corruption Bureau. My present objection is regarding the authorship of the statement attributed to Shakespeare that Caesar’s wife must be above suspicion. As far as I could gather, William Shakespeare never made any such statement, nor did he doubt the nuptial fidelity of Pompeia. The statement comes from Plutarch’s account of Julius Caesar’s justification for his decision to divorce his wife Pompeia consequent on the scandal which was spread pursuant to the detection of the libertine Publius Clodius (who was in love with Pompeia) in the house in which the women of Caesar’s household were celebrating a festival.

9. The Judge who rendered the verdict in question is one of my favourites. My endeavour through these articles is not to target any Judge or Advocate who constitute two sides of the same coin in the dispensation of justice. My concern is for the subordinate judiciary the members of which may be tempted to follow a wrong judicial verdict as a binding precedent unless adequately educated. If my articles help to enlighten both the Bench and the Bar and clear any lingering doubts, then my mission will be fulfilled.

N. J. C.: Regulations  should  be  on "Removal"
Rather  than "Appointments"

(By Jamsheed Hafiz, Advocate, High Court of Kerala, Ernakulam)

The official watchdog of the “Basic Structure of Constitution” has again brought the over enthusiastic legislature on its track by its judgment delivered on October 15, striking down the National Judicial Commissions Act. Time and again the official regulator reminds the Parliamentarians to enact laws without disturbing the Basic Structure of the Constitution. Though there are unmerited interpretations that the judiciary again does not permit legislature or executive to poke their nose to its arbitrary appointments made by the Collegiums, it is time to think of the constitutional virtues and the enormity of powers granted by the Constitution to the Judiciary, Executive and Legislatures.

Democracy is a system in which three luxury compartments, Judiciary, Executive and Legislatures, moves on a track called Constitution. The journey designed by the people and for the people, through the track is for the well being of its citizens and to develop a society abiding the laws enacted by the Parliament. If the compartments with executives are managing the day to day administration of the society, the compartments with legislatures supplement them by enacting laws for their better administration. The third compartment of Judiciary with its members would always be regulating the other two compartments itself from derailing or regulating to keep moving on the track without deviating from its track of Basic Structure of Constitution. When the admission of members to the compartments of “Executives” and “Legislatures” are directly or indirectly by the people, the admission of members to the Compartment of “Judiciary” is by the President in consultation with the “such judges of the Supreme Court and High Courts” (Art.l24(2) of the Constitution) which itself is the aphorism in “Independence of Judiciary”.

Out of all the bureaucrats and public servants, the position of a Judge in High Court or Supreme Court would be the most difficult job in the process of decision making. When all the other bureaucrats and public servants would get a chance to take an opinion on consultation with colleagues or experts, the Judges who are constrained to decide more issues in a day would conclude their decision by “In My Opinion”, to which they enjoy absolute immunity. Any practicing lawyer would know that no judge can be well versed in all the laws enacted by the Parliament and what he could expect is an application of a sound legal principles on the facts of his case based on the available materials placed before him. The years of experience in life and law, together with the experience in the cases appeared by them are the factors which would be moulding and shaping the conclusion “In My opinion”. It is also desirable that “In My Opinion”, should to be free of any caste, religious or any political interest. If it is this “In My Opinion”, that matters for the legislature and executives, then it is high time that they realise the fact that the appointments with their concurrence would not alone produce a better “In My Opinion”.

The framers of the Constitution specifically excluded the hands of executive and legislature from the appointments of Judges in order to give a true colour to the independence of Judiciary. The Second Judges case (Supreme Court Advocates On-Record Association and Anr. v. Union of India (AIR 1994 SC 268), a nine Judge Bench of the Supreme Court, speaking through Lordship Justice J.S. Verma, Majority View, discussed in detail about the Independence of Judiciary and held that the appointments of Judges to the High Court and Supreme Court contemplated by the Constitution specifically excluded the hands of Executive and Legislature inorder to have a true Independence of Judiciary and gave birth to the system of Collegium. Leaving all the legal and technical aspect of the above discussion and a mere logical analysis to the above issue, it could be understood that the members of Higher Judicial Service would alone be able to pick out better legal minds from its Judicial Officers and practicing lawyers, compared to the administrators and legislatures. When a legal acumen of a law graduate is too far below the legal acumen of a practicing lawyer, the wherewithal of Executive or Legislature in the process of appointment is contemptible. Even after the Second Judges case, the Former President of India, K.R. Narayanan addressed a Special Reference to the Chief Justice of India as to the concurrence and procedure to be followed on if there are divergent opinion among the collegiums and whether the opinion of Chief Justice would alone be considered in such cases (one out of Nine queries by the Former President of India). The Supreme Court again constituted a co-equal bench, which clarified the above doubts of the President of India by way of its Judgment reported in AIR 1999 SC 1 (President of India v. Special Reference No.l of 1998), which clearly explained the decision of the “Second Judges case” by Nine Judge Bench which was followed and affirmed by the co-equal bench.

Now if still, “In My Opinion”, matters for the Legislatures and Executive, it is high time they realise the fact that the independence of Judiciary is not absolute in all respect. It may be true that the independence of Judiciary is absolute in the process of selection of Judges but not absolute in case of removal. Constitution provides that a Judge may desire to retire himself by writing under his hand addressed to the President of India or by any process contemplated by Article 124(4) of the Constitution (2nd Proviso) of Article 124(2)). Article 124(4) of the Constitution says that a Judge could be removed from the office in case of proven misbehaviour or incapacity. Article 125(5) further gives a power to the legislature to promulgate laws for “the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge” under Clause (4) of Article 124.

Then it is time to ask the above over enthusiastic legislators how far did you exploited above power given to you under Articles 124 (4) and (5) of the Constitution? There are more than hundreds of allegations and complaints filed before the President of India, Chief Justice of Supreme Court and High Courts about the misbehaviour and incapacity of the Judges appointed by the Collegium. How many such complaints were redressed by the legislatures or atleast enquired into by them?. The allegations of corruption would stand in top among such complaints, equal in par with the delay in serving the copy of the Judgments to the clients. Analyzing Article 124(4) and (5) it is understood that in case of such complaints, it is not the duty of the Collegium alone to initiate appropriate investigation to find out the truth. How many impeachments were conducted by the Parliament for the last 68 years after the independence. Is it because there are no complaints against the Judicial Members? If the answer is yes”, then why do you want to disturb the present selection process? If the answer is “No”, then what actions were initiated by you upon the powers granted to you by the Constitution for proving such incapacity or misbehaviour? If the process of impeachment was used sixty one times in United States, how many times was in it invoked in India.

There is no point in bringing a National Judicial Commission for the appointment of Judges with your knowledge and concurrence when you are still sleeping over the powers granted to you by the Constitution. Because even appointments are made in your concurrence and if the best ones are selected to the post by the commission designed by you, there can no assurance that they will not misbehave in future or that they will incapacitate themselves. In majority of the cases where a lawyer from bar is offered a post in Higher Judiciary, the lawyer would be compromising his personal income, certainly for the commitment towards the society and the patriotism in him. But at times he may witness his colleagues with allegations of incapability and misbehaviour stepping over him for the reasons of incompetence and slothfulness of the Legislatures to enact set of laws for speedy remedy of investigation and proof of the misbehaviour or incapacity of a judge. Atleast to safeguard and keep the said patriotism in those Judges, it is high time that the legislature wake up from you deep slumber and raise to your feet and promulgate laws for the speedy enquiry and proof of such allegation so as to free the judiciary from such stains.

It is high time that the over enthusiastic Legislatures wake up from their deep slumber and realise the powers granted to you by the Constitution and start keeping an eye on the functioning of the judiciary by redressing the complaints of misbehaviour and incapacity of the Judicial members, by promulgating effective speedy remedies to the people, rather than attempting to intrude themselves to the appointment of Judicial Officers, waning the colours of “Independent Judiciary”.

In My View, George v. State of Kerala (2015 (3) KLT 219)
Does Not Lay Down The Correct Law

(By V. Ramkumar, Former Judge , High Court of Kerala)

The Facts Leading to the Acquittal

The case which came up for consideration before the Hon’ble High Court of Kerala, was an appeal against the conviction entered and sentence passed against the appellant (a U.D.Clerk in the Town Employment Exchange, Pala) by the Enquiry Commissioner and Special Judge, Thrissur (“Special Judge” fort short) for offences under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (“P.C. Act” for short) and Sections 409, 465, 471 and 477-A of the Indian Penal Code, 1860 (“I.P.C.” for short).

2. The case of the prosecution was that on 23.1.1990 and on 15.1.1991 the accused/appellant while working as a U.D.Clerk in the aforesaid office had misappropriated a total amount of `4080/- by committing criminal breach of trust, using forged documents and by falsification of accounts.

3. The accused was found guilty of all the offences charged and appropriate sentence was also imposed on him by the Special Judge. It was the said conviction which was assailed by the accused in the appeal filed before the Hon’ble High Court of Kerala.

4. Accepting the arguments of the accused/appellant the learned Judge, as far as I could comprehend, held as follows:-

i) The prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences (Section 465 and 471 I.P.C.) and also for the reason that the trial court did not exercise its power of condoning the delay under Section 473 Cr.P.C. before taking cognizance. (Judgment – para 17).

ii) The prosecution should fail for want of prosecution sanction under Section 197 Cr.P.C. in relation to the offences under the I.P.C., namely, Sections 409, 465, 471 and 477-A because the power given to the Director of Employment to remove the appellant from his office is only as an agent or delegate of the Government and therefore the appellant must be deemed to be removable only by or with the sanction of the Government. (Judgment – paras 24,25 and 27)

iii) The prosecution is bad for not obtaining proper prosecution sanction by the authority competent to grant sanction under Section 19 of the P.C.Act since the authority delegated as the sanctioning authority by the Governor was the Secretary of Vigilance Department and not the Director of Employment although the said Director is the appointing authority as well as the authority competent to remove the accused from his office. (Judgment – paras. 24,25 and 27).

iv) The decision in George v. State of Kerala (2004 (2) KLT 369)in the Writ Petition filed by the appellant challenging the want of prosecution sanction under S.197 Cr.P.C., has been rendered disregarding the legal and constitutional provisions and is without jurisdiction and a nullity besides being per incurium and is therefore, not binding. (Judgment – paras 20,21,24,25 and 26).

v) The inordinate delay in the investigation and the illegality in the investigation coupled with the rigmarole of trial have violated the appellants’ fundamental right to get a fair trial guaranteed by Article 21 of the Constitution of India. (Judgment – paras 28 and 29).

The conviction entered and the sentence passed by the Special Judge was accordingly set aside and the appellant/accused was acquitted of all the offences charged against him.

MY COMMENTS

5. The bar of limitation alleged. The bar of limitation and that too only for offences punishable with imprisonment upto 3 years, was introduced for the first time only in the present Cr.P.C. None of the earlier Codes of Criminal Procedure contained any such provision. The general rule of criminal justice is that “ a crime never dies”. This is reflected in the maxim “ nullum tempus aut locus occurrit regi” (Lapse of time is no bar to the Crown in proceeding against offenders). This is because a criminal offence is considered as a wrong against the State and the society eventhough it has been committed against an individual. It is by way of an exception to the above rule that the law of limitation was, for the first time, introduced in the present Cr.P.C. but only for relatively minor offences. The justification is that no person should be kept under continuous apprehension that he can be prosecuted at “any time” for “any crime” irrespective of the nature or seriousness of the offence. (Vide Japani Sahoo v. Chandrasekhar Mohanty (2007 (3) KLT 760 (SC) = (2007) l7 SCC 394 = AIR 2007 SC 2762).

In the case on hand, the offences with which the accused/appellant was charged, were Section 409 I.P.C. (punishable with imprisonment for life or imprisonment for 10 years and fine); Section 465 I.P.C. (punishable with imprisonment upto 2 years); Section 471 I.P.C. (punishable with imprisonment upto 2 years) and Section 477-A I.P.C. (punishable with imprisonment for 7 years) and Section 13(1)(c) read with Section 13(2) of the P.C. Act (punishable at the relevant time with imprisonment upto 7 years) - By vurtue of sub-s. (3) of S. 468 Cr.P.C. the period of limitation, in relation to offences which may be tried together (as in this case), is to be determined with reference to the offence which is punishable with the most severe punishment. In the present case, the offence under Section 409 I.P.C. is the one which is punishable with the most severe punishment which is imprisonment for life or imprisonment for 10 years and fine. Under Section 468 Cr.P.C. read with Section 469 Cr.P.C. the maximum period of limitation is only 3 years from the date of commission of the offence for offences punishable with imprisonment not exceeding 3 years. If so, by virtue of the inclusion of the offence under Section 409 I.P.C. which is punishable with the most severe punishment far exceeding 3 years, there cannot be any limitation for any of the offences which are tried jointly with the offence under Section 409 I.P.C. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297); Radhakrishnan P.R. & Anr. v. State of Kerala & Anr. – 2012 (3) KLT 88; Rameshwar v. Rajeshwar Prasad Sahu – 2010 Crl. L.J. 361; Bhart Lal v. Top Singh (1995 Crl. L.J. 3545); Harman Singh v. Everest Construction Co. (2004 Crl. L.J. 4178); Sri. Balaji Traders v. State (1990 Crl. LJ 332); Raman Gowda v. The Registrar (Vigilance), High Court of Karnataka (2006 Crl. L.J. 1839). What the Court has to examine is the nature of the offence which the accused was charged with and not the nature of the offence for which the accused is eventually convicted. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297).This is something analogous to Section 155(4) Cr.P.C. where a case involving non-cognizable offences along with at least one cognizable offence, is to be treated as a cognizable case for the purpose of investigation. In fact, it was after observing correctly towards the end of paragraph 8 of the verdict in question to the effect that if the offence alleged against the accused is punishable with imprisonment exceeding 3 years, there is no period of limitation for the prosecution, that the learned Judge fell into an error by concluding in paragraph 17 as under:-

 “Therefore, I am of the view that the prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences and also for the reason that the Trial Court did not exercise its power under S.473 Cr.P.C. before taking cognizance.”

Such a conclusion was legally impermissible.

Absence of prosecution sanction under Section 197 Cr.P.C.

6. With regard to the offences under Sections 409, 465, 471 and 477A I.P.C., the learned Judge has concluded in paragraph 27 of the verdict in question that absence of a prosecution sanction under Section 197 Cr.P.C. is fatal. Admittedly, the accused /appellant is a public servant. The question of obtaining prosecution sanction will arise only if such public servant of the nature referred to in Section 197(1) Cr.P.C. committed the offences while acting or purporting to act in the discharge of his official duty. There is a whole line of precedential authority to the effect that committing the aforementioned offences cannot constitute acts done in the performance of the official duty of a public servant. In State of H.P. v. M.P.Gupta 2004 (1) KLT SN 43 (C.No. 56) SC = (2004) 2 SCC 349 = AIR 2004 SC 730, it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under Section 467, 468 and 471 IPC and, therefore, there was no need for any sanction to prosecute the public servant. Again it has been held that sanction for prosecuting a public servant for offences punishable under Sections 409 and 468 I.P.C. is not required since those offences cannot be committed in discharge of official duty. (Vide State of U.P. v. Paras Nath Singh (2009 (3) KLT Suppl. 999 (SC) = (2009) 6 SCC 372) – 3 Judges; Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1 = AIR 2007 SC 1275; Bholu Ram v. State of Punjab (2008 (4) KLT SN 51 (C.No. 47) SC = (2008) 9 SCC 140).If so, no prosecution sanction under Section 197 Cr.P.C. is required to be obtained for prosecuting a public servant for the aforementioned offences. (Here the humble personal view of this author is that it is only when the public servant exceeds his lawful authority and commits an offence that the question of prosecuting him for such offences will arise and it is only for such prosecution that the sanction of the authority competent to grant sanction, is required. VidePadmarajan C.V. v. Government of Kerala & Ors. 2009 (1) KLT Suppl. 1 = ILR 2009 (1) Ker.36 – para 12.But personal views of mortals like the author should definitely yield to the authority of binding judicial precedents, particularly of the Apex Court by the force of Article 141 of the Constitution of India).If so, the absence of sanction to prosecute the accused for the I.P.C. offences, was not fatal.

The accused public servant whether removable from his office by or with the
sanction of the Government ?

7. If sanction to prosecute the appellant under Section 197 Cr.P.C. with regard to the I.P.C. offences is not necessary at all, then the further question as to whether he is removable from office by or with the sanction of the Government, is purely academic. But with regard to the offence under Section 13(1)(c) of the P.C. Act, this question is relevant since clause (b) of Setion 19(1) P.C. Act is somewhat pari materia with clause (b) of Section 197(1) Cr.P.C. The verdict in question has devoted much space for evaluating the argument of the accused in this behalf. In paragraph 24 (at page 237 of the KLT) of the judgment, the learned Judge has found that the appointing authority of the appellant who is a Government servant, is the Director of Employment. The discussion proceeds to hold that as per the delegation made under Rule 9 of the Kerala Civil Services (Classification, Control and Appeal) Rules falling under Section 3 of the Public Services Act which in turn is subservient to Article 309 of the Constitution of India, the Director of Employment is the appointing authority of the appellant. It is further found that the accused is removable from his office also by the said Director. It was the very same Director who issued Ext. P64 order of sanction under Section 19 of the P.C. Act. The Director who issued the sanction order was examined as PW 20 also. If so, can it be said that the appellant is removable from office by the Government or with the sanction of the Government? Who else, other than the Director, is the authority competent to grant the prosecution sanction under Section 19(1)(b) of P.C. Act.? When the appellant is not removable from office by or with the sanction of the Government, but instead is removable from office only by the Director of Employment, there was no need for prosecution sanction under Section 197 Cr.P.C. Both Section 197 Cr.P.C. as well as Section 19 of the P.C. Act, draw a line between public servants of various classes. When some lower authority is by law, or rule or order, empowered to remove a public servant, then such public servant cannot be said to be one removable by or with the sanction of the Government. (Vide Nirendra Natha Sarkar v. State of Assam (1985) Crl. LJ . Noc 21 (Gau.) ; Sakuntala Bai v. Venkatakrishna Reddy– 1952 Crl. L.J. 1295 (Mad.); Pichai Pillai v. Balasundara Mudaly (AIR 1935 Mad. 442= 58 Mad. 787).

The following passage in the judgment in question occurring towards the bottom of page 236 and the beginning of page 237(of KLT) indicates the reasoning put forward on behalf of the appellant and upheld by the learned Judge:

“The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi judicial acts; provided those rules conform to the principles of judicial procedure. It is therefore clear that the words “State Government” does not mean the Governor himself, but includes his delegates either under a valid law or under Article 154(1) read with 166(3) of the Constitution of India. Learned counsel therefore contended that as per the ratio in the above decision (Gullapalli Nageswara Rao & Ors. v A.P.State Road Transport Corporation & Anr. (AIR 1959 SC 308), a Government employee removable by the Governor or his delegates as per the above said provisions will come within the definition of the Government servant removable by the Government for the purpose of Section 197(1) Cr.P.C. The contention raised by the Counsel is legally sound and therefore I am inclined to accept it.”

With due respect, it was precisely such an identical contention which was repelled by the Federal Court way back in the year 1943 in Afzalur Rahman and Others v. Emperor – AIR 1943 F.C. 18while dealing with the Section 197 of the Code of Criminal Procedure, 1898, which corresponds to S.197 Cr.P.C. The Federal Court, in this connection, took judicial notice of the fact that Section 197, in one form or the other, had appeared in successive Codes of Criminal Procedure for more than 70 years then and hence the provision should be interpreted in the light of certain well known features of the administrative system prevailing in India. Adverting inter alia to the verdict of the Madras High Court in Pichai Pillai v. Balasundara Mudali (AIR 1935 Mad. 442),the Federal Court observed that rules and regulations had been framed by the provincial Governments dividing the superior and subordinate services into various classes and empowering different authorities to appoint and dismiss officers of the different classes. The Federal Court further observed that such rules and regulations had all along provided that certain superior class of officers can be dismissed only by or with the sanction of the local Government and it is to this class of officers that the Legislature intended to limit the protection given by Section 197.

The Federal Court consciously refrained from applying the maxim “ Qui facit per alium facit per se” ( a person who acts through another acts himself) in such situations. Once this distinction is understood, there will be no warrant for an argument of the type advanced before the learned Judge without adequate research. In Nagraj v. State of Mysore (AIR 1964 SC 269)it was argued before a three-Judge Bench of the Supreme Court that the accused Sub Inspector of Police could be dismissed from service only by the State Government and, therefore, sanction under Section 197 Cr.P.C. was necessary for his prosecution for the offences purported to have been committed in the discharge of his duty. The said argument did not find favour with the Supreme Court which held that since an Inspector General of Police could dismiss a Sub Inspector of Police, the latter could not be said to be a public servant not removable from his office save by or with the sanction of the Government so as to insist that sanction of the State Government was necessary for prosecuting the Sub Inspector even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty. To the same effect is the decision of the Punjab and Haryana High Court in Sant Kumar v. State of Punjab (2003 Crl. L.J. 2949).Such being the legal position, the contention urged and upheld in this behalf, was wholly unsustainable.

Whether the delegated authority competent to grant prosecution sanction is the Director of Employment or the Secretary, Vigilance Department?

8. In paragraph 24 of the judgment in question reference is made to the submission by the appellants’ counsel that the power under Section 197(1) (b) Cr.P.C. was delegated to the Secretary, Vigilance Department by the Governor under Article 166 of the Constitution of India. No order to that effect appears to have been produced before the Hon’ble High Court. From the aforementioned submission, the learned Judge would straightaway conclude that PW20 (the Director of Employment) was, therefore, not authorised to grant sanction under Section 197 Cr.P.C. as a delegate of the Governor as on the date of Ext. P64 sanction order. The judgment is not clear whether the appellants’ argument was that with the empowerment of the Secretary, Vigilance Department, under Section 197(1)(b) Cr.P.C. by the Governor, the Director of Employment was stripped of his power to grant prosecution sanction. It has already been seen that sanction for prosecuting the appellant under Section 197 Cr.P.C. was not necessary. With regard to the offence under Section 13(1)(c) and punishable under Section 13(2) of the P.C. Act, prosecution sanction has been granted by the Director under Section 19 of the P.C. Act. Since the appellant was not removable from office by or with the sanction of the Government within the meaning of Section 19(1)(b) of the P.C. Act, it was sufficient that the prosecution sanction was granted by the Director as provided under Section 19(1)(c) of P.C. Act.

9. Now, the further question is whether it was the Director of Employment or the Secretary of Vigilance Department, who was competent to grant sanction under Section 19(1) (c) of the P.C. Act. The appellant’s argument that it was the Secretary of Vigilance Department who was the authority competent to grant prosecution sanction under Section 19 of P.C. Act, presumably stems from G.O.(Ms) 169/94/GAD dated 23-4-1994 as per which the Vigilance Department was inter alia invested with the power of issuing orders sanctioning prosecution of a public servant under the Cr.P.C. and the P.C. Act. Corresponding amendment to the duties and functions of the Vigilance Department which is Serial No. XXXVI in the First Schedule to the Rules of Business of the Government of Kerala framed by the Governor under Article 166(2) and (3) of the Constitution of India, was incorporated as Item 8 at page 69 of the said Rules. The above investiture is only with regard to those public servants who are removable by or with the sanction of the Government. In fact, at present it is the Vigilance Secretary and not the Administrative Secretary concerned, who is issuing orders of prosecution sanction both under Section 197 Cr.P.C. and Section 19 of the P.C. Act in relation to public servants who are removable by or with the sanction of the Government. This has nothing to do with the issuance of prosecution sanction under Section 19(1)(c) of the P.C. Act regarding public servants like the appellant who are not liable to be removed from office by or with the sanction of the Government. Hence the prosecution sanction given by the Director of Employment is perfectly valid.

The impact of the Writ Petition and appeal filed by the accused

10. After the Special Judge took cognizance of the aforementioned offences, the accused/appellant filed a Writ Petition (O.P.No. 10181 of 1999) before the Hon’ble High Court of Kerala seeking to quash the F.I.R. on the ground that since he is a public servant not removable from office save by or with the sanction of the Government, sanction to prosecute him under Section 197 Cr.P.C. was a condition precedent for prosecuting him. Mr. Justice J.B. Koshy after a detailed analysis of the legal provisions as well as the case law on the point held that the appointing authority of the accused was the Director of Employment and the accused was liable to be removed from his post also by the same officer under the Civil Services (Classification, Control and Appeal) Rules and, therefore, the accused is not a public servant not removable from his office save by or with the sanction of the Government within the meaning of Section 197 Cr.P.C. Consequently, it was held that Section 197 Cr.P.C. was not attracted so as to warrant a sanction to prosecute the accused under that section. The Writ Petition was dismissed on 21.3.2000. Aggrieved by the decision of the learned Single Judge, the accused/appellant filed a Writ Appeal (W.A.No. 925 of 2000) before the Hon’ble High Court. The Division Bench speaking through Mr. Justice K.A. Abdul Gafoor affirmed the view taken by the learned Single Judge and dismissed the Writ Appeal on 13.2.2004. The decision of the Division Bench has been reported in George v. State of Kerala (2004 (2) KLT 369).

The accused /appellant having assailed the prosecution proceedings against him on the ground of absence of prosecution sanction under Section 197(1)(b) Cr.P.C. and want of proper sanction under Section 19(1)(b) of the P.C.Act and having suffered an adverse verdict at the hands of the Hon’ble Judges who were well versed in service law as well, was estopped from turning round and assailing those verdicts as illegal and passed without jurisdiction and rendered per incurium. Strangely enough, with a view to circumvent the above adverse verdicts, the accused/appellant who contended that the principles of res judicata and constructive res judicata are not applicable to criminal proceedings, placed reliance upon Ashok Leyland’s caseto contend that a jurisdictional question, if wrongly decided, would not attract the principles of res judicata. If, committing the specified offences under the IPC is not part of the official duty of a public servant so as to warrant prosecution sanction under Section 197 Cr.P.C. and if the said provision is not attracted also for the reason that the accused is not removable from his office by or with the sanction of the Government, where is the question of any jurisdictional error in the adverse verdicts suffered by the accused so as to avoid those verdicts?. The attempt made by the accused to place reliance upon the decision of the Constitution Bench in Gullapalli Nageshwara Rao’scase to contend for the position that the Governor through his delegates can also perform such quasi judicial acts, was also wholly misplaced. Granting or refusing prosecution sanction is an administrative act and not a quasi judicial one. Hence the order granting or refusing sanction is a mere executive order. (Vide State of Maharashtra v. P.P. Sharma ((1992) Supp (1) SCC 222); A. Veeraswamy v. Union of India ((1991) 3 SCC 655); State of Maharashtra v. Ishwar Piraji Kalpatri ((1996) 1 SCC 542); T.M. Jacob v. State of Kerala (1999 (2) KLT 161).When the final verdict in the Writ Petition filed by the accused went against him, he thought it convenient to disown the verdict and collaterally attack the same.

Delay affecting the constitutional rights of the Appellant

11. One of the contentions raised and upheld under this head is that as against Section 17(c) of the P.C. Act which mandates that the investigation of the case shall be conducted by a Police Officer of the rank of a Dy.S.P., the investigation was conducted by PWS 27 and 28 both of whom were of the rank of Inspector of Police and no order authorising them to conduct the investigation was produced. According to the appellant besides the above illegality, the long drawn out investigation with unjustifiable delay has affected the right of the appellant to get a fair trial. The aforesaid illegality alleged by the appellant could not have been countenanced in view of the settled legal position that any infirmity in the investigation cannot affect the jurisdiction of the Court to take cognizance of the case and proceed to trial unless the objection in that regard was raised at the earliest opportunity. To put it differently, any defect or illegality in the investigation, however serious, has no direct bearing on the cognizance of the case or its trial. (Vide H.N. Rishbud v. State of Delhi (AIR 1955 SC 196); Mobarik Ali Ahmed v. State of Bombay – (AIR 1957 SC 857); Din Dayal Sharma v. State of U.P. (AIR 1959 SC 831); E.G. Barsay v. State of Bombay (AIR 1961 SC 1762); Munna Lal v. State of U.P. (AIR 1964 SC 28); State of A.P. v. N. Venugopal (AIR 1964 SC 33); M.C. Sulkunte v. State of Mysore (AIR 1971 SC 508); State of A.P. v. P.V. Narayana (AIR 1970 SC 811); Khandu Sonu Dhobi v. State of Maharashtra (AIR 1972 SC 958); A.C.Sharma v. Delhi Administration (AIR 1973 SC 913); Durga Dass v. State of H.P. (AIR 1973 SC 1379); Nanak Chand v. State of H.P (AIR 1974 SC 765). The appellant not only did not raise any objection in this regard at the earliest opportunity but also did not voice his grievance in this regard in the Writ Petition and Writ Appeal filed by him after the Special Judge had taken cognizance of the offence.

12. The appellant who had moved the High Court in the year 1999 and who was assailing the alleged illegality of absence of prosecution sanction until his Writ Appeal was dismissed by the High Court on 13-2-2004, cannot be heard to say that the delay in the trial had infringed his fundamental right of fair or speedy trial. He alone is responsible for the delay, if any.

13. In paragraph 29 of the verdict in question there is an omnibus statement that the oral and documentary evidence do not establish the guilt of the appellant. What exactly is the evidence has not been discussed. There is no re-appreciation of evidence attempted by the Court of first appeal. It is further stated that the evidence, if analysed correctly, would show that the appellant cannot be blamed singly for the shortage of cash found out on inspection The learned Judge does not appear to have been taken through the oral and documentary evidence for a re-appraisal. In such circumstances, the following observation of the Apex Court in State of H.P. v. Tara Dutt (AIR 2000 SC 297) is most apposite:-

“ It has no doubt been indicated in the penultimate paragraph of the impugned judgment that even on merits the offence under Sections 417 and 465 I.P.C. has not been established but that was only a causal observation without application of mind and without consideration of the facts on record on the basis of which the learned Special Judge convicted the two respondents of the offence under Sections 417 and 465 of the Indian Penal Code.”

My Conclusion

14. Based on the judicial interpretation given to Section 197 Cr.P.C. and Section 19 of the P.C. Act the following propositions of law can be considered to be well settled:-

(i) Unlike Section 19 of the P.C. Act, Section 197 Cr.P.C. contemplates prosecution sanction only by the State or Central Governments, as the case may be, if the other conditions of the said section are attracted and that too only in the case of a State or Central Government employee (other than a member of the Forces) answering the definition of “public servant”. Under Section 19(1)(c) prosecution sanction is necessary even in the case of a non-Government public servant and such sanction is to be granted by the authority competent to remove such public servant from his office.

(ii) It is no part of the official duty of a public servant to commit offences such as those punishable under Sections 409,467,468, 471 I.P.C. etc and for those offences no prosecution sanction under Section 197 Cr.P.C. is necessary. The “Explanation” incorporated in Section 197 (1) Cr.P.C. has statutorily added to the above list a few more offences involving sexual inpropriety.

(iii) With regard to the other offences under the I.P.C., prosecution sanction under Section 197 Cr.P.C. is necessary even if the public servant has ceased to be such public servant provided the other conditions of Section 197 Cr.P.C. are satisfied. But under Section 19 of the P.C. Act, no sanction is necessary if the public servant is no more occupying the post which he allegedly abused. Similarly, if the public servant at the time of the court taking cognizance, is not holding the post which he allegedly abused but is holding another public office where also he may be a public servant, then also sanction under Section 19 of the P.C. Act is not necessary.

(iv) Prosecution sanction by the State Government under Section 197 Cr.P.C. will be required in the case of a State Government servant only if –

(a) he is a public servant removable from his office either by the State Government or with the sanction of the State Government; AND

(b) (i) he is employed in connection with the affairs of the State; OR

(ii) he was, at the time of commission of the alleged offence, employed in connection with the affairs of the State; AND

(c) the alleged offences were committed by him while acting or purporting to act in the discharge of his official duty.

If as per the Rules and Regulations governing such Government servant, a lower officer of the Government has been invested with the power to appoint or remove such Government servant from office, then it cannot be said that such Government servant is removable by or with the sanction of the Government so as to necessitate a prosecution sanction by the State Government under Section 197 Cr.P.C. The said provision does not, in such a case, contemplate a prosecution sanction by the delegated authority competent to remove such Government servant from his office unlike Section 19(1)(c) of the P.C. Act.

Similar criteria with necessary changes, will apply in the case of a Central Government servant.

What Prompted me

It is in my anxiety to see that a wrong judicial precedent does not fatally affect both pending and future cases, that I have strained so much as if I were sitting in appeal against the judgement. Counsel appearing before Courts also have some responsibility. The Constitution Bench decision in Gullapalli Nageswara Rao’s case (AIR 1959 SC 308)had been cited and quoted out of context to contend for the position that dismissal from service of a public servant by a delegate of the Government amounts to dismissal by the Government itself requiring sanction under Section 197 Cr.P.C. Similarly, both the appellant and his counsel had no qualms to disown the High Court verdicts which were invited by the appellant himself. I consider it my duty to ensure that the subordinate Criminal Courts are not carried away by some of the sweeping observations in the judgments of superior courts. But with utmost respect I hasten to add that no sort of ill will is meant towards the learned Judge whom I hold in great esteem and affection. After all, dispensation of justice by the Judges is a solemn function carried out in utmost good faith and errors may at times occur quite unintentionally and that is why we have the correctional remedy by way of appeal, revision, review etc.