KALICHARAN MAHAPATRA versus STATE OF ORISSA

Citation: [1998] 3 S.C.R. 961 · Decided: 04-08-1998 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

KALICHARAN MAHAPATRA 
v. 
STATE OF ORISSA 
AUGUST 4, 1998 
[M.M. PUNCHHI, CJ., AND K.T. THOMAS, JJ.] 
Criminal Law : 
Prevention of Corruption Act, 1988: Sections 19, 13(2) and 13 (1) 
(e). 
Public servant- Commission of offence by-Public servant ceased to 
be so at the time of trial-Prosecution of-Held: Even if a public servant 
ceased to be so he is liable to be prosecuted under the Act-However, court 
A 
B 
c 
can take cognizance of offence even without sanction if he ceases to be a 
public servant-Merely because previous sanction is required for former D 
· public servant, under S. 197 Cr. P. C. It does not mean that no prosecution 
can be launched against a former public servant-Criminal Procedure Code, 
1973, s. 197. 
The appellant was an IPS Officer against whom a charge sheet under 
Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption E 
Act, 1988 was registered after he retired from service. The appellant raised 
an objection that he was not liable to be tried under the Act since he was 
no more a public servant 1'he Special Court overruled appellant's objection. 
The High Court dismissed the petition filed by the appellant. Hence this 
appeal 
F 
On behalf of the appellant it was contended that under Section 197 of 
the Criminal Procedure Code, 1973 sanction for prosecution was mandatory 
for a former public servant and since the words "former public servant" do 
not occur in any of the provisions of the Act it followed that no prosecution 
could be launched against the appellant who was a former public servant. 
G 
Dismissing the appeal, this Court 
HELD : 1.1. A public servant who committed an offence mentioned in 
the Prevention of Corruption of Act, 1988, while he was a public servant, can 
be prosecuted with the sanction contemplated in Section 19 of the Act if he H 
961 
962 
SUPREME COURT REPORTS 
(1998] 3 S.C.R. 
A continues to be a public servant when the court takes cognizance of the 
offence. But if he ceases to be a public servant by that time, the court can 
take cognizance of offence without any such sanction. In other words, the 
public servant who committed the offence while he was a public servant, is 
liable to be prosecuted whether he continues in office or not at the time of 
B trial or during the pendency of the prosecution. (967-E-F( 
1.2. There is no indication anywhere in the provisions of the Act that 
an offence committed by a public servant under the Act would vanish off from 
penal liability at the moment he demits his office as public servant. His being 
a public servant is necessary when he commits offence in order to make him 
C liable under the Act. He cannot commit any such offence after he demits his 
office. If the interpretation now sought to be placed by the appellant is accepted 
it would lead to the absurd position that any public servant could commit the 
offences under the Act soon before retiring or demitting his office and thus 
avert any proceedings for it or that when a public servant is prosecuted for 
an offence under the Act, he can secure an escape by protracting the trial 
D till the date of superannuation. (964-E-F) 
E 
2. In Section 197 of the Criminal Procedure Code, 1973 the necessity 
for previous sanction of made applicable to former public servants also by 
using the words "when any person who is or was a public servant". In spite 
of bringing such a significant change to Section 197 of the Code in 1973, 
Parliament was circumspect enough not to change the wording in Section 
19 of the Act, which deals with sanction. The reason is obvious. The sanction 
contemplated in Section 197 of the Code concerns a public servant who" is 
accused of any offence alleged to have been committed by him while acting 
or purporting to act in the discharge of his official duty", whereas the 
F offences contemplated in the P.C. Act are those which cannot be treated as 
acts either directly or even purportedly done in the discharge of his official 
duties. Parliament must have desired to maintain the distinction and hence 
the wording in the corresponding provision in the former P.C. Act was 
materially imported in the new P.C. Act, 1988 without any change in spite of 
the change made in Section 197 of the Code. [967-C-D] 
G 
R. Balakrishna Pillai v. State of Kera/a, (1996) 1 SCC 478, relied on. 
S.A. Venkataraman v. State, (1958) SCR 1040; C.R. Bansi v. State of 
Maharashtra, (1971]3 SCR 236; State of West Bengal v. Manmal Bhutoria, 
[1977)3 SCR 758 an

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