ORDER K.P. Balanarayana Marar, J.

1. Two questions pf some importance arise in this criminal revision petition. They are:

(i) Whether sanction in terms of Section 197(1) of the Code of Criminal Procedure is required for prosecution under the Prevention of Corruption Act 1947?

(ii) Whether sanction under Section 6 of that Act is prerequisite for the prosecution of an accused public servant under Section 5 of that Act even when such accused person had ceased to be a public servant on the date of the taking cognisance of the offence by the Special Judge?

2. The first accused in C.C.27 of 1989 on the file of Enquiry Commissioner and Special Judge, Thiruvananthapuram is the petitioner herein. He had been a Minister of the Kerala Government during the relevant period and the Department of Electricity was one of the portfolio under his charge. The second accused, the second respondent was the Chairman of the Kerala State Electricity Board. The allegation against them is that during the period from October 1984 to May 1985 they conspired along with the then Power Secretary Sri. G. Gopalakrishna Pillai and in pursuance to the conspiracy sold 1,22,41,440 units of electric current to M/s. Graphite India Ltd., Bangalore. The further allegation is that the accused had made a profit of Rs. 19,58,630/- in the said sale which is against the provisions of the Electricity Supply Act and the Kerala State Electricity Board Rules. At the time when the impugned transaction took place the first accused was the Minister in charge of Electricity. He ceased to be a Minister and continued as a Member of the Legislative Assembly. Finding that the above mentioned acts constituted offences under Sections 109 and 102-B of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act 1947 Government decided to prosecute the above mentioned individuals. Since first accused was not a Minister at the time the complaint was laid and cognizance taken by the Court it was not necessary to obtain sanction for prosecution under the provisions of the Prevention of Corruption Act. A sanction order was issued by the Government on 21-7-1989 as per G.O.(Ms) 127/89/VIG. under Section 197 of the Code of Criminal Procedure.

3. After obtaining sanction a complaint was preferred against petitioner and the other two accused as C.C.27/89 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. Subsequently the prosecution withdrew the complaint against Sri. Gopalakrishna Pillai and he was acquitted. Before the Court started recording evidence a petition was moved on behalf of the petitioner as Crl. M.P. 218/94 requesting dismissal of the complaint on the ground that no proper sanction was obtained before prosecution. The Special Judge while holding that Ext. P. 50, the sanction order issued by the Government was not a valid sanction rejected the request on the ground that Section 197 Criminal Procedure Code is not attracted to a case tried by the Special Court and that the prosecution is not bad for want of sanction under that section. That order is challenged in this revision.

4. Heard counsel for petitioner and Director General of Prosecutions for the first respondent.

5. On the second question the answer can only be that no sanction is required under Section 6 for prosecuting an accused public servant before a Special Judge when he has ceased to be a public servant on the date of taking cognizance of the offence by the said court. Section 6 of the Prevention of Corruption Act 1947 say that no court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of that Act alleged to have been committed by a public servant except with the previous sanction in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanption of the State Government. As early as 1958 the Supreme Court in S.A. Venkataraman v. The State, 1957 SCR 1037 : (1958 Cri LJ 254) observed that a public servant who has ceased to be a public servant is not a person removable from any office by competent authority. The Supreme Court held that the conclusion is inevitable that at the time a Court is asked to take cognizance not only must the of-, fence have been committed by a public servant but the person accused must still be a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. It is observed that where a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power by any provision of law must be confined to the terms of the prohibition.

6. The Supreme Court had considered the matter in R. S. Nayak v. A. R. Antulay, AIR 1984 SC 684 : (1984 Cri LJ 613). It was held that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence comnfitted by a public servant as required by Section 6 is the date on which the court is called upon to take cognisance of the offence of which he is accused. If the accused was a public servant at the time when the offence is alleged to have been committed but by the time cognizance of the offence is taken by the court he has ceased to be a public servant no sanction, would be necessary for taking cognizance of the offence against him. The Supreme Court held that this approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment or a frivolous or speculative prosecution. On the further question as to whether a Member of the Legislative Assembly is a public servant within the meaning of Sub-clause (a) of Section 21 of the Indian Penal Code the Supreme Court held that he is neither in the pay of the Government in the sense of Executive Government nor remunerated by fees for performance of any public duty by the Executive Government. It was held that a Member of the Legislative Assembly is not comprehended in the expression 'public servant' within the meaning of the expression in Section 21 of the Indian Penal Code. It is observed that even though an M.L.A. receives, pay and allowances he cannot be said to be in the, pay of the Government i.e. the executive. He does not perform any public duty either directed by the Government or for the Government. He discharges constitutional functions for which he is remunerated by fees under the Constitution and not by the Executive.

7. Petitioner had ceased to be a Minister by the time cognizance of the offence was taken by the Special Judge. At the time when the offence is alleged to have been committed petitioner was employed in connection with the affairs of the State but he had ceased to be a public servant at the time the court was asked to take cognizance of the offence. Sub-clause (b) of Section 6(1) of the Prevention of Corruption Act is therefore not attracted and the question of previous sanction before cognizance is taken by the Special Court does not therefore arise.

7A. Sri. Kunhirama Menon, learned Counsel for petitioner strenuously contended that even if sanction under Section 6 is not required sanction under Section 197 has to be obtained from the Governor before cognizance of the offence is taken by the court. It is pointed out that the Special Judge has held that the sanction produced by the prosecution is not a valid sanction under Section 197 of the Code. It was admitted before the Special Judge that the order for sanction was not . even put up before the Governor and the order cannot be held to be an order of the Governor. Director of Public Prosecutions who appeared for the State does not dispute this fact. We have therefore to proceed on the basis that there is no sanction under Section 197 of the Code. But the question to be considered is whether sanction under that section is required in the present case. The Special Judge held that the provisions contained in Section 6 of the Prevention of Corruption Act will exclude the application of the general provision of sanction contained in Section 197 of the Code of Criminal Procedure. This finding of the Special Judge is assailed by petitioner. According to Sri. Kunhirama Menon, learned Counsel for petitioner, the sanction under Section 197 had to be obtained since petitioner was at the time of the commission of the alleged offence employed in connection with the affairs of the State Government. As per Section 197 of the Code no court shall take cognizance of an offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty except with the previous sanction of the State Government in the case of a person who is employed or as the case may be was at the time of commission of the alleged offence employed in connection with the affairs of a State. Petitioner had been a Minister holding the portfolio of electricity at the time of commission the offence. He had ceased to be a Minister by the time cognizance of the offence was taken by the Court. But sanction contemplated under Section 197 of the Code has to be obtained even in the case of a person who was employed as a public servant at the time of commission of the offence argues counsel. The contention is that even a retired public, servant is entitled to protection under Section 197 of the Code and that is manifested by the phrase "was at the time of commission of the alleged offence employed...." The Supreme Court in State of Maharashtra v. Dr. Budhikota Subba Rao, 1993 SCC (Cri) 901 observed that by legislative fiction the officer who has ceased to be a public servant is deemed to be a public servant under Section 197 of the Code irrespective of his retirement if the accusations against him are for act of omission done by him when he was in service. The purpose is to avoid exposing a public servant to vexatious or frivolous prosecutions merely because he has demitted his office.

8. In support of his contention that Section 197 of the Code is applicable counsel has drawn attention to Section 8 of the Criminal Law Amendment Act 1952. Sub-section (3) of that section reads:

Save as provided in Sub-section (1) or subsection (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Sessions trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.

It is contended that the provisions of the Code of Criminal Procedure shall, so far as they are not inconsistent with that Act apply to the proceedings before a Special Judge appointed to try offence under Section 5 of the Prevention of Corruption Act. According to counsel there is no provision in the Criminal Law Amendment Act of 1952 which is inconsistent with the provisions contained in Section 197 of the Code of Criminal Procedure and as such that section shall apply to proceeding before a Special Judge appointed under the Prevention of Corruption Act. That Act was intended to provide for a more speedy trial of certain offences and by virtue of Section 6 of that Act State Government may by notification in the Official Gazette appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try certain offences mentioned therein which include Section 5 of the Prevention of Corruption Act. Section 8 only lays down the procedure and powers of the Special Judges so appointed. Sub-section (1) of that Section says that a Special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons shall follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases by Magistrates. Sub-section (2) enables the Special Judge to tender a pardon to any person with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in any offence and any pardon so tendered shall for the purpose of Sections 339 and 339A of the Criminal Procedure Code 1898 be deemed to have been tendered under Section 338 of that Code. It is in the light of these provisions that Sub-section (3) has to be understood. That only provides that the provisions of the Criminal Procedure Code 1898 so far as they are not inconsistent with the Criminal Law Amendment Act 1952 shall apply to the proceedings before a Special Judge and for the purposes of the said provision the court of the Special shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor. There is no indication in Section 8 to suggest that the provision contained in Section 6 of the Prevention of Corruption Act is in any way controlled by any of the provisions of the Code of Criminal Procedure. The contention that sanction under Section 197 of the Code has to be obtained over and above the sanction prescribed under Section 6 of the Prevention of Corruption Act is therefore not sustainable. This contention cannot also be entertained for the further reason that the Criminal Law Amendment Act 1952 has been repealed along with the Prevention of Corruption Act 1947 by Section 30 of the Prevention of Corruption Act 1988 which is the Act now in force. Specific provision has been made in Section 19 of that Act regarding previous sanction for prosecution. That Section is analogous to Section 6 of the Prevention of Corruption Act 1947 except Sub-section (3) which provides that on the ground of irregularity of sanction no finding of the Court can be reversed.

9. The next aspect to be considered is whether sanction under Section 197 of the Code of Criminal Procedure has to be obtained in addition to the sanction contemplated under Section 6 of the Prevention of Corruption Act 1947. A second sanction under Section 197 of the Code is not required, according to the Director General of Prosecutions since the Prevention of Corruption Act is a special Act, the provisions of which will override the provisions of the Code of Criminal Procedure. The provisions contained in Section 5 of the Prevention of Corruption Act indicate that the special legislation was required for the prevention of corruption and bribery of the public servants. The preamble to the Act mentions that, the Act was intended since it was found expedient to make more effective provision for the prevention of bribery and corruption. The law existing then was proved to be inadequate for dealing with the problem. Immediate and drastic action was found necessary to stamp out bribery and corruption taking into account of the seriousness of the evil and the possibility of its continuance or extension in future. On the other hand, Sri. Kunhirama Menon would contend that sanction under the Prevention of Corruption Act and under Section 197 of the Code are required in the case of a public servant. It may be that such sanction is not required under Section 6 of the Prevention of Corruption Act in the case of a person who was not employed in connection with the affairs of the State at the time when cognizance of the offence was taken. But sanction under Section 197 is required even in the case of such a person by virtue of the amended Section 197 as per which even a retired public servant is entitled to protection. This contention is not sustainable in view of two decisions relied on by the Director General for Prosecutions. A Division Bench of the Punjab and Haryana High Court in Rajinder Kumar Sood v. The State of Punjab, (1983) 85 Punj LR 30 : (1982 Cri LJ 1718) held that Section 6 of the Prevention of Corruption Act excludes the general provisions of Section 197 of the Code which is not attracted to the trial of offences before a Special Judge against an accused public servant who has ceased to be a public servant on the date of the taking of cognizance of the offence by the said court. It is observed that the two statutes have separate and distinct provisions with regard to sanction and these are in no way in pan materia. The Bench has also drawn attention to the provision in Section 5 of the Code of Criminal Procedure which says that nothing contained in the Code shall in the absence of a specific provisions to the contrary, affect any special or local law for the time being in force. The Bench ultimately held that Prevention of Corruption Act being a special statute the provisions of Code would not override the same and in any case cannot apply where they are inconsistent with the provisions of the Special Act.

10. After referring to the decision in Venkitaraman's case (1958 Cri LJ 254 (SC)) (supra) the Bench observed that whilst holding that Section 6 was not attracted in the case of a public servant who had ceased to be so at the time of taking cognizance of the offence the Supreme Court did not say nor remotely indicate that in that event Section 197 might be attracted. It was for these reasons, that the Bench held that Section 6 of the Prevention of Corruption Act excludes the general provisions of Section 197 of the Code which is not attracted to the trial of offence before the Special Judge. I am in respectful agreement with the views expressed by the Punjab and Haryana High Court in the aforesaid decision.

11. In the view that I had taken I am also supported by a decision of the Orissa High Court reported in State Prevention and Control of Pollution Board v. Berhampur Municipality, 1992 Cri LJ 2909. That was a case where cognizance of an offence under the Water (Prevention and Control of Pollution) Act (6 of 1974) was taken on a complaint against the Berhampur Municipality. The specific sanction required under Section 49 of that Act was obtained. The question arose whether the sanction under Section 197 of the Code can be insisted upon. The Orissa High Court held that in view of the specific provision in Section 49 of the Act requiring sanction of the Board constituted under the statute to be obtained before filing a complaint further sanction under Section 197 Criminal Procedure Code cannot be insisted upon. It is observed that the provision for sanction under Section 197 Cr. P. C. are meant to protect certain categories of public servants, against false, frivolous and mala fide criminal cases. The section therefore requires that the State Government or a competent officer authorised in that behalf should apply his mind to the facts and circumstances of the case and be satisfied that the case is not a frivolous one. This provision, according to the Orissa High Court, acts as a. check on initiation of criminal cases which ordinarily can be set in motion by any person by lodging a report with the police or by filing a complaint before the Magistrate. It was held that in a case where Section 49 has been complied with, it is not necessary to insist upon a second sanction from the State Government before proceeding with the criminal case. In the connection it is observed that Section 197 of the Criminal Procedure Code is in the nature of general provision applicable to offence prescribed under the Penal Code as well as special statutes. But Section 49 of the Act is a special provision applicable to offences committed under Act 6 of 1974. It is an accepted principle of interpretation that if a special provision is applicable to a case a general provision relating to the same matter will not apply to that case.

12. The position that emerges therefore is that the general provision contained in Section 197 of the Code of Criminal Procedure is not attracted to the trial of offence under the Prevention of Corruption Act before the Special Judge. The sanction required is the sanction contemplated under Section 6 of that Act. Since petition had ceased to be a Minister and for that reason had caused to be a public servant by the time cognizance of the offence was taken by the court sanction under Section 6 is not required since that Section insists for a sanction only in the ease of person who is employed in connection with affairs of a State. The two questions formulated in this revision petition are therefore answered against petitioner.

13. Apart from the offence committed under Section 5 of the Prevention of Corruption Act, 1947 petitioner is also charged with the offence under Section 120B of the Indian Penal Code. It may be contended that sanction under Section 197 of the Code is required for taking cognizance of the offence under Section 120B of the Penal Code. But it is the settled position that sanction under Section 197 is required only for taking cognizance of the offence committed by a public servant while acting or purporting to act in discharge of his official duty. The acts constituting offence under Section 120B of the Penal Code are not acts committed in the course of discharge of official duty. As observed by the Supreme Court in Harihar Prasad v. State of Bihar, 1972 Cri LJ 707, it is no part of the duty of a public servant while discharging his official duties to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code is therefore no bar.

14. For the aforesaid reasons the Criminal Revision Petition is dismissed.