HABIBULLA KHAN versus STATE OF ORISSA AND ANR.

Citation: [1995] 1 S.C.R. 819 · Decided: 02-02-1995 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Dismissed

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Judgment (excerpt)

HABIBULLA KHAN 
A 
v. 
STATE OF ORISSA AND ANR. 
, 
FEBRUARY 2, 1995 
[P.B. SAWANT AND G.N. RAY, JJ.] 
B 
·-< 
Orissa Special Courts Act, 199(}-Section 5 Prevention of corruption 
Act, 198&-Sections 13(1)(e) and 19-0ffence of criminal miscon-
duct-Prosecution of MLA-No sanction of Governor or any other authority c 
required-Provisions of Section 19 inapplicable-Offence committed during 
appellant's tenure as Minister-He continued to be MLA-Whether he could 
be prosecuted for offence committed after he ceased to be Minister-Held, 
No. 
The appellants were Minister in the Council of Ministers of the State D 
~ 
of Orissa during the period in which they were alleged to have been found 
in possession of pecuniary resources or property disproportionate to their 
known sources of income. Subsequently, they ceased to be Ministers due 
to the change of Government and thereafter were elected as the Members 
of the Legislative Assembly of the State. They continued to be such Mem-
E 
hers till the prosecutions were launched against them for the offence of 
criminal misconduct u/s 13 (l)(e) of the Prevention of Corruption Act. 
The appellant filed an application before the Special Court for 
-
recalling the orders of cognizance of the offence of the ground that at the 
• 
time of taking the cognizance, he was an MLA and as such a public servant F 
within the meaning of Section 2(c)(viii) of the Act and, therefore, he· could 
not be tried for the offence u/s 13(1) (e) without the sanction of the 
Governor of the State u/s 19 of the Act who according to him was com-
petent to remove an MLA. The Special Court dismissed the application 
holding that an MLA was not a public servant and furtlier the Governor G 
was not competent to remove an MLA. This order was challenged by the 
appellant. The matter was dismissed by the High Court holding that an 
MLA was a public servant within the meaning of Section 2(c)(vii) of the 
Act but the Governor had no power of 'removal' of an MLA under Art. 192 
of the Constitution by way of punishment. It was held that since the 
Governor was not the authority to remove an MLA, the sanction was not H 
819 
820 
SUPREME COURT REPORTS 
(1995] 1 S.C.R. 
A necessary u/s 19 of the Act. These appeals were filed against the judgment 
of the High Court. 
A question of law raised for consideration was whether sanction was 
· required for launching a criminal prosecution against the appellants and 
whether the appellants could be prosecuted for the offence which they were 
B alleged to have committed during their tenure as ministers after they 
ceased to be the ministers. 
Dismissing the appeals, this Court 
HELD : 1.1 The appellants were being. prosecuted for the criminal 
C misconduct which they were alleged to have committed during the period 
they were holding high political office within the meaning of Section 5(1) 
of the Special Courts Act read with rules 2(1)(f))i) of the Rules made 
under that Act. The Special Courts Act incorporates the definition of 
"criminal misconduct" given in Section 13(1)(e) of the Prevention of Cor-
D ruption Act. The procedure for prosecution to be followed, however, is as 
laid down under the Special Courts Act. All that the Special Courts Act 
requires for launching a criminal prosecution against a person holding 
high political office is that the State Government should make a declara-
tion under Section 5(1) of that Act that there was prima facie evidence of 
E the commission of an offence by a person who held high public or political 
office in the State. Hence the provisions of Section 19 of the Act do not 
come into the picture in the present case. That being so, no sanction of the 
Governor. or any other authority was necessary for launching the criminal 
prosecutions in question. The appellant were being prosecuted for the 
misconduct alleged to have been committed by them during their tenure 
F as the members of the Council of Ministers and not in t"eir capacity as 
the MLAs. Hence the provisions of Section 19 were inapplicable to the facts 
of the present case. (823-H, 824-A-B] 
1.2 Sanction of that competent authority alone would be necessary 
which is competent ~o remove the public servant from the office which he 
G is alleged to have misused or abused for corrupt motive and for which a 
prosecution is intended to be launched against him. (826-B] 
At the time a Court is asked to take cognizance, not only must the 
offence have been committed by a public servant bu

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