K. Veeraswami Vs. Union of India & Ors [1991] INSC 164 (25 July 1991)
1991 Latest Caselaw 164 SC

K. Veeraswami Vs. Union of India & Ors [1991] INSC 164 (25 July 1991)

Shetty, K.J. (J) Shetty, K.J. (J) Ray, B.C. (J) Sharma, L.M. (J) Venkatachalliah, M.N. (J) Verma, Jagdish Saran (J)

CITATION: 1991 SCR (3) 189 1991 SCC (3) 655 JT 1991 (3) 198 1991 SCALE (2)150

ACT:

Prevention of Corruption Act, 1947: Ss. 2, 5(1)(e), 5(2), 6(1)(c)-Public servant--Possession of pecuniary re- sources or property disproportionate to known sources of income----Prosecution after superannuation-Previous sanc- tion-- Whether necessary.

Judge of High Court/Supreme Court--Whether 'public servant', liable to prosecution under the Act--Sanctioning authority--Who is.

Sanctioning authority--Whether vertically superior in the hierarchy in which office of the public servant exists.

Cl. (c) of s. 6(1)--Whether independent of and separate from clauses (a) and (b)--Rule of ejusdem generis--Applica- bility of.

Independence of Judiciary--Whether affected by applica- tion of the Prevention of Corruption Act to Judges of High Court/Supreme Court--Issuance of guidelines by Court.

Indian Penal Code, 1860: Ss. 19, 21--"Judge"--Whether includes a High Court/Supreme Court Judge--Whether 'public servant' under s. 2 of Prevention of Corruption Act.

Constitution of India, 1950: Articles 74, 79, 121, 211, 124, 217, 2 18--Provision for initiation of proceeding for removal of a Judge-Whether a ground for withholding criminal prosecution of a Judge for offence under s. 5(1) (e) of the Prevention of Corruption Act, 1947.

Independence of Judiciary----Effect of application of Prevention of Corruption Act, ]947 to Judges of superior Courts.

Code of Criminal Procedure, 1973: Ss. 154, 173(2), 173(5)-Offence committed by public servant under s. 5(1)(e) of the Prevention of Corruption Act, 1947--Complaint re- garding--Investigation Requirements--Police report/Charge sheet--Contents of 190 Evidence Act, 1872: S. 106--Offence committed under s. 5(1)(e) of Prevention of Corruption Act, 1947--Possession of property disproportionate to known sources--Whether fact within special knowledge of the public servant--Burden of proof----On whom.

Words and Phrases.' "satisfactorily account"--Meaning of.

Statutory Interpretation: Rule of ejusdem generis--Ex- plained.

HEAD NOTE:

A complaint against the appellant, a former Chief Jus- tice of a High Court, was made to the CBI on which a case under s. 5(2) read with s. 5( I )(e) of the Prevention of Corruption Act, 1947 was registered on 24.2.1976. On 28.2.1976 the F.I.R. was filed in the court of Special Judge. The appellant proceeded on leave from 9.3.1976 and retired 8.4.1976 on attaining the age of superannuation.

The investigation culminated in the filing of charge- sheet/final report under s. 173(2), Cr. P.C. against the appellant on 15.12.1977 before the Special Judge.

The Charge-sheet stated that the appellant after assum- ing office of the Chief Justice on 1.5.1969 gradually com- menced accumulation of assets and was in possession of pecuniary resources and property, in his name and in the names of his wife and two sons, disproportionate to his known sources of income for the period between the date of his appointment as Chief Justice and the date of registra- tion of the case, and thereby he committed the offence of criminal misconduct under s. 5( 1 )(e), punishable under s. 5(2) of the Prevention of Corruption Act, 1947. The Special judge issued process for appearance of the appellant. Mean- while, the appellant moved the High Court under s. 482, Cr. P.C. to quash the said criminal proceedings.

The matter was heard by a Full Bench of the High Court which dismissed the application by 2:1 majority; but granted a certificate under Articles 132(1) and 134(1)(c) of the Constitution in view of the important question of law in- volved.

In appeal to this Court it was contended by the appel- lant that the provisions of the Prevention of Corruption Act, 1947 do not apply to a judge of a superior Court as for such prosecution previous sanction of an authority competent to remove a public servant as provided under s. 6 of the Prevention of Corruption Act, 1947 is imperative and power to remove a Judge is not vested in any single individual authority but is 191 vested in the two Houses of Parliament and the President under Article 124(4) of the Constitution; that the Parlia- ment cannot be the sanctioning authority for the purpose of s. 6 and if the President is regarded as the authority, he cannot act independently as he exercises his powers by and with the advice of his Council of Ministers and the Execu- tive may 'misuse the power by interfering with the judici- ary; that s. 6 applies only in cases where there is master and servant relationship between the public servant and the authority competent to remove him, and where there is verti- cal hierarchy of public offices and the sanctioning authori- ty. is vertically superior in the hierarchy in which office of the public servant against whom sanction is sought ex- ists; that no prosecution can be launched against a Judge of a superior Court under the provisions of the Prevention of Corruption Act except in the mode envisaged by Article 124(4) of the Constitution; that no law prohibits a public- servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence only when the public servant is unable to account for it; and that the public servant is entitled to an oppor- tunity by the investigating officer to explain dispropor- tionality between the assets and the known sources of income and the charge sheet must contain such an averment, and failure to mention that requirement would vitiate the charge-sheet and render it invalid and, no offence under s. 5(1)(e) of the Act could be made out.

On the questions: (1) whether a Judge of a High Court or of the Supreme Court is a 'public servant' within the mean- ing of s. 2 of the Prevention of Corruption Act, 1947; (2) whether a Judge of the High Court including the Chief Jus- tice, or a Judge of the Supreme Court can be prosecuted for an offence under the Prevention of Corruption Act, 1947; and (3) who is the competent authority to remove a Judge either of the Supreme Court or of the High Court from his office in order to enable that authority to grant sanction for prose- cution of the Judge under the provisions of s. 6 of the Prevention of Corruption Act, 1947.

Dismissing the appeal, this Court,

HELD: (Per Majority--Ray, Shetty, Sharma and Venkatachaliah, JJ).

1. A Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning of s. 2 of the Preven- tion of Corruption Act, 1947.

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

Per Verma, J. (dissenting)--

1. (i) A Judge or Chief Justice of a High Court is a Constitutional functionary, even though he holds a public office and in that sence he may be included in the wide definition of a public servant. But a public servant whose category for the grant of sanction for prosecution is not envisaged by s. 6 of the Act is outside the purview of the Act, not intended to be covered by the Act.

1(ii) The Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court.

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

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

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

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

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

Sharma. J. (contra) As to who is precisely the authority for granting previ- ous sanction for prosecution of a Judge is a matter which did not arise in the instant case and will have to be final- ly decided when it directly arises. How- 193 ever, the issues of removal under Art. 124(4) of the Consti- tution and sanction under s. 6 of the Act can be combined for getting clearance from the Parliament.

Verma. J. (dissenting)

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

Per B.C. Ray, J.

1. A Judge of the High Court or of the Supreme Court comes within the definition of public servant under s. 2 of the Prevention of corruption Act, 1947. and he is liable to be prosecuted under the provisions of the Act. [223E-F]

2.1 A Judge will be liable for committing criminal misconduct within the meaning of s. 5(1)(e) of the Act, if he has in his possession pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account. [217B]

2.2 A Judge of a superior Court will not be immune from prosecution for criminal offences committed during the tenure of his office under the provisions of the Act. [223F]

3.1 In order to launch a prosecution against a Judge of a superior Court for criminal misconduct failing under s.

5(1)(e) of the Act, previous sanction of the authority competent to remove a Judge, including Chief Justice of a High Court, from his office is imperative. [217C-D; 221G]

3.2 The President of India has the power to appoint as well as to remove a Judge from his office on the ground of proved misbehaviour or incapacity as provided in Article 124 of the Constitution and, therefore he, being the authority competent to appoint and to remove a Judge, of course, in accordance with the procedure envisaged in clauses(4) and (5) of Article 124. may be deemed to be the authroity to grant sanction for prosecution of a Judge under the provi- sions of s. 6(1)(c) in respect of the offences provided in s. 5(1)(e) of the Act. [225G-H; 226A-B]

3.3 In order to adequately protect a Judge from frivo- lous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before 194 him and tender his advice to the President for giving sanc- tion to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India. [226B-C] If the Chief Justice of India is of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned, the President shall not accord sanction to prosecute the Judge. This will save the ,fudge concerned from unnecessary harassment as well as from frivolous prose- cution against him. [226C] In the case of the Chief justice of the Supreme Court, the President shall consult such of the Judges of the Su- preme Court as he may deem fit and proper and shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. [226D]

3.4 In the instant case, the appellant had resigned from his office and ceased to be a public servant on the date of lodging the F.I.R. against him by the C.B.I. and, therefore, no sanction under s. 6(1)(c) of the Act was necessary. [227A; 228C] R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495, referred to.

4.1 A Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary and to main- tain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a judge and to maintain the rule of law, even in respect of against the Central Government or the State Government, he is made totally independent of the control and influence of the executive by mandatorily embodying in Article 124 or Article 217 of the Constitution that a Judge can only be removed from his office in the manner provided in clauses (4) and (5) of Article 124. [222B-D]

4.2 Power to remove by impeachment or address, a person holding office during good behaviour, is an essential coun- terpart to the independence secured to the holders of high office by making their tenure one of good behaviour instead of at pleasure. [224D-E]

4.3 A Judge of the Supreme Court or of the High Court can only be removed on the ground of proved misbehaviour or incapacity by an order of the President passed after follow- ing the mandatory procedure expressly laid down in Article 124(4) of the Constitution. Without an address by each of the Houses of the Parliament, the President is not 195 empowered under the Constitution to order removal of a Judge of the Supreme Court or of the High Court from his office on the ground of proved misbehaviour or incapacity. Therefore, the repository of this power is not in the President alone but it is exercised after an address by each of the Houses of Parliament in the manner provided in Article 124(4). [218B-H; 219A]

Union of India v. Sakalchand, AIR 1977 SC 2328 and S.P. Gupta and Ors. v. President of India and Ors, AIR 1982 SC 149, referred to.

5. There is no master and servant relationship or employer and employee relationship between a Judge and the President of India in whom the executive power of the Union is vested under the provisions of Article 53 of the Consti- tution. [222E]

6. It is necessary to evolve some method commensurate with the grant of sanction in cases of serious allegations of corruption and acquisition or the possession of dispro- portionate assets which the Judge cannot satisfactory ac- count for or possession of property disproportionate to the sources of income of the Judge. Otherwise, it will create a serious inroad on the dignity, respect and credibility and integrity of the high office which a superior ,fudge occu- pies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public. [225E-F]

7.1 The purpose of grant of previous sanction before prosecuting a public servant including a Judge of the High Court or of the Supreme Court is to protect the Judge from unnecessary harassment and frivolous prosecution more par- ticularly to save the Judge from the biased prosecution for giving judgment in a case which goes against the Government or its officers though based on good reasons and rule of law. [226D-E]

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

Per Shetty, and Venkatachaliah, JJ.

196

1. The expression "public servant" as defined under s. 2 of the Prevention of Corruption Act, 1947 means a public serv- ant as defined in s. 21, I.P.C. From the very commencement of the I.P.C. "Every Judge" finds a place in the categories of public servant defined under s. 21 and this expression indicates all Judges and all Judges of all Courts. It is a general term and general term in the Act should not be narrowly construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore excluded from the defi- nition of 'public servant'. [237C; 240D; 242A-B]

2.1 A public servant cannot be prosecuted for offences specified in s. 5 of the Prevention of Corruption Act, 1947, unless there is prior sanction under s. 6 for prosecution from the competent authority. [237E]

2.2 There are two requirements for the applicability of clause (c) of s. 6(1) to a Judge of the higher judiciary--the Judge must be a public servant, and there must be an authority competent to remove him from his of- fice. If these two requirements are complied with, a Judge cannot escape from the operation of the Act. [240B-C]

2.3 The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is re- quired. There is no law providing protection for Judges from criminal prosecution. [252A-B] It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable. [252D-E] The "proved misbehaviour" which is the basis for removal of a Judge under clause (4) of Article 124 of the Constitu- tion may also in certain cases involve an offence of crimi- nal misconduct under s. 5(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. [251A-C]

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

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

Clauses (a) and (b) would cover the cases of public servants who are employed in connection with the affairs of the Union or State and are not removable from their office save by or with the sanction of the respective government. Clause (c) states that in the case of any other person the sanction would be of the authority competent to remove him from his office. [238E-F] The provisions of clauses (a) and (b) of s. 6 [(1)] cover certain categories of public servants and the 'other' which means remaining categories are brought within the scope of clause (c). Clause (c) is independent of and sepa- rate from the preceding two clauses. The structure of the section does not permit the applicability of the rule of ejusdem generis. [240A-B]

3.3 The application of the ejusdem generis rule is only to general word following words which are less general, or the general word following particular and specific words of the same nature. In such a case, the general word or expres- sion is to be read as comprehending only things of the same kind as that designated by the preceding specific words or expressions. The general word is presumed to be restricted to the same genus as those of the particular and specific words. [239F-G]

3.4 The construction which would promote the general legislative purpose underlying the provision, is to be preferred to a construction which would not. [247A] If the literal meaning of the legislative language used would lead to results which would defeat the purpose of the Act, the Court would be justified in disregarding the liter- al meaning and adopt a liberal construction which effectu- ates the object of the legislature. [247A-B] S.A. Venkataraman v. The State, [1958] SCR 1040 and M. Narayanan v. State of Kerala, [1963] 2 Suppl. SCR 724, referred to.

Craies on Statute Law, (6th Edn. p. 531) referred to.

3.5 In view of the composition of Parliament, the nature of transacting business or proceeding in each House, the prohibition by Article 121 on discussion with respect to the conduct of any Judge of the Supreme Court or of a High Court, in the discharge of his duties except 198 upon a motion for presenting an address to the President praying for his removal, the Parliament cannot be the proper authority for granting sanction for the prosecution of a Judge, That does not, however, follow that the Judges of superior Courts are entitled to be excluded from the scope of the Act. [245C-F]

3.6 Section 6 requires to be liberally construed. It is not a penal provision but a measure of protection to public servants in the penal enactment. It indicates the authori- ties without whose sanction a public servant cannot be prosecuted. It is sufficient that the authorities prescribed thereunder fail within the fair sense of the language of the section. [247B-C] The expression "the authority competent to remove" used in s. 6(1)(c) is to be construed to mean also an authority without whose order or affirmation the public servant cannot be removed. The order of the President for removal of a Judge is mandatory. The motion passed by each House of Parliament with the special procedure prescribed under Art.

124(4) will not proprio vigore operate against the Judge. It will not have the consequence of removing the Judge from the office unless it is followed by an order of the President.

Clause (4) of Art. 124 is in the negative terms. The order of the President is sine qua non for removal of a Judge. The President alone could make that order. [247C-E, 248C]

3.7 The relationship of master and servant as is ordi- narily understood in common law does not exist between the Judges of higher judiciary and the Government. The Judges are not bound nor do they undertake to obey any order of the Government within the scope of their duties. Indeed, they are not Judges if they allow themselves to be guided by the Government in the performance of their duties. [239B-D] Union of India v. H.S. Seth, [1978] 1 SCR 423, referred to.

3.8 It is not necessary that the authority competent to give sanction for prosecution or the authority competent to remove the public servant should be vertically superior in the hierarchy in which the office of the public servant exists. There is no such requirement under s. 6 of the Act.

The power to give sanction for prosecution can be conferred on any authority. Such authority may be of the department in which the public servant is working or an outside authority.

All that is required is that the authority must be in a position to appreciate the materials collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative. [249B-C] 199 R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183, distinguished.

The President is not an outsider so far judiciary is concerned. He appoints the Judges of the High Court and the Supreme Court in exercise of his executive powers. [249E] Shamsher Singh v. State of Punjab, [1975] 1 SCR 365 and S.P. Gupta v. Union of India, [1982] 2 SCR 365, referred to.

Parliament has no part to play in the matter of appoint- ment of Judges except that the Executive is responsible to the Parliament. [249G-H]

3.9 In the instant case, the view taken by the High Court that no sanction for prosecution of the appellant under s. 6 of the Act was necessary since he had retired from the service on the age of superannuation and was not a public servant on the date of filing the charge-sheet, is unassailable. The question is no longer res integra. [254G- H; 255C] S.A. Venkataraman v. The State, [1958] SCR 1040; C.R. Bansi v. State of Maharashtra, [1971] 3 SCR 236 and K.S. Dharmadatan v. Central Government & Ors., [1979] 3 SCR 832, referred to.

R.S. Nayak & Ors v.A.R. Antulay, [1984] 2 SCR 183, referred to.

4.1 There are various protections afforded to Judges to preserve the independence of the judiciary. They have pro- tection from civil liability for any act done or ordered to be done by them in discharge of their judicial duty whether or not such judicial duty is performed within the limits of their jurisdiction, as provided under s. 1 of Judicial Officers Protection Act, 1850. Likewise s. 77, I.P.C. gives them protection from criminal liability for an act performed judicially. A discussion on the conduct of the Judges of the Supreme Court and the High Courts in the discharge of their duties shall not take place in Parliament or in the State Legislatures, as envisaged by Articles 121 and 211 of the Constitution. The Supreme Court and the High Courts have been constituted as Courts of Record with the power to punish for committing contempt as laid down by Articles 129 and 215. The Contempt of Courts Act, 1971 provides power to take civil and criminal contempt proceedings. The Executive is competent to appoint the Judges but not empowered to remove them. The power to remove is vested in Parliament by the process analogous to impeachment as envisaged by Article 124 of the Constitution. [251E-H; 242E] 200

4.2 Previous sanction of the competent authority as contem- plated by s. 6 is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he is duty bound to grant sanction if the material collected lend credence to the offence complained of the discretion to prosecute a public servant is taken away from the prosecuting agency and is vested in the authority competent to remove the public servant. The latter would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether or not the sanction for prosecution deserves to be granted. [237F-G; 238A-C]

4.3 The apprehension, that the Executive being the largest litigant is likely to misuse the power to prosecute the Judges, in our overlitigious society is pot unjustified or unfounded. The Act provides certain safeguards like s. 6 and trial by the court which is independent of the Executive.

But these safeguards may not be adequate. Any complaint against a Judge and its investigation by the CBI, if given publicity, will have a far reaching impact on the Judge and the litigant public. The need therefore is a judicious use of taking action under the Act. Care should be taken that honest and fearless Judges are not harassed. They should be protected. [252G-H; 253A-C]

5.1 There is no need for a separate legislation for the Judges. The Act is not basically defective in its applica- tion to judiciary. All that is required is to lay down certain guidelines lest the Act may be misused. This Court being the ultimate guardian of rights of people and inde- pendence of the judiciary will not deny itself the opportu- nity to lay down such guidelines. This Court is not a Court of limited jurisdiction of only dispute settling. Almost from the beginning, this Court has been a law maker, albiet, 'interstitial' law maker. Indeed the Court's role today is much more. It is expanding beyond dispute settling and interstitial law making. It is a problem solver in the nebulous areas. [253E-G]

5.2 The Chief Justice of India is a participatory func- tionary in the matter of appointment of Judges of the Su- preme Court and the High Courts; he is to be consulted by the President of India even for transfer of a Judge from one High Court to another; and question of age of a Judge of a High Court shall be decided by the President after consult- ing him. The Chief Justice of India being the head of the Judiciary is primarily concerned with the integrity and impartiality of the judiciary. Hence it is necessary that the Chief Justice of India is not 203 either from the evidence of the prosecution and/or evidence from the defence. [259F-G]

8.3 Parliament is competent to place the burden on certain aspects on the accused as well and particularly in matters "especially within his knowledge". (s. 106 of the Evidence Act). Adroitly the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources of property disproportionate to his known sources of income. It is for him to explain. Such a statute placing burden on the accused cannot be regarded as unreasonable, unjust, or unfair. Nor can it be regarded as contrary to Article 21 of the Consti- tution. The principle that the burden of proof is always on the prosecution and never shifts to the accused is not a universal rule to be followed in every case. The principle is applied only in the absence of statutory provision to the contrary. [260A-C] Woolmington v. Director of Public Prosecution, [1935] A .C. 462; C.S.D. Swamy v. The State, [1960] 1 SCR 461; Surajpal Singh v. The State of U.P., [1961] 2 SCR 971; Sajjan Singh v. The State of Punjab, [1964] 4 SCR 630; Rig v. Hunt, [1986] 3 WLR 1115 and Maharashtra v. K.K.S. Ramas- wamy, [1978] 1 SCR 274, referred to.

State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, [1981] 3 SCR 675, referred to.

9.1 To state that after collection of all material, the investigating officer must give an opportunity to the ac- cused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating him to the position of an enquiry officer or a judge. He is not holding an enquiry against the conduct of the public servant or determining the disputed issues re- garding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the Court as a chargesheet. The investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the inves- tigation, he may examine the accused. Indeed, fair investi- gation requires that the accused should not be kept in darkness. He should be taken into confidence if he is will- ing to cooperate. [261B-E]

10.1 The charge-sheet is nothing but a final report of the police officer under s. 173(2) of the Cr. P.C. Section 173(2) provides that on 204 completion of the investigation the police officer investi- gating into a cognizable Offence shall submit a report, which must be in the form prescribed by the State Govern- ment. The statutory requirement of the report under s. 173(2) would be complied with if the various details pre- scribed therein are included in the report and it accompa- nies all the documents and statements of witnesses as re- quired by s. 172(5) Cr. P.C. Nothing more need be stated in the report of the investigating officer. It is also not necessary that all the details of the offence must be stat- ed. The details of the offence are required to be proved to bring home the guilt of the accused at a later stage in the course of the trial of the case by adducing acceptable evidence. [261E-H; 262A-C] Satya Narain Musadi and Ors. v. State of Bihar, [1980] 3 SCC 152, referred to.

10.2 In the instant case, the charge sheet contained all the requirements of s. 173(2), Cr.P.C. It stated that the investigation showed that between 1.5.1969 and 24.2.1976 the appellant had been in possession of the pecuniary resources and property in his own name and in the names of his wife and two sons, which were disproportionate to the known sources of income over the same period and he cannot satis- factorily account for such disproportionate pecuniary re- sources and property. The details of properties and pecuni- ary resources of the appellant also were set out in clear terms. No more was required to be stated in the charge sheet. It was fully in accordance with the terms of s. 173(2), Cr.P.C. and clause (e) ors. 5(1)(e) of the Act. [262C-E]

11. The society's demand for honesty in a Judge is exacting and absolute. The standards of judicial behaviour, both on and off the Bench, are normally extremely high. For a judge to deviate from such standards of honesty and impar- tiality is to betray the trust reposed on him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice the size of the bribe or scope of corruption cannot be the scale for measuring a judge's dishonour. A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integ- rity of the entire judicial system. [262F-H; 263A] A judicial scandal has always been regarded as far more deplorable than a scandal involving either the Executive or a member of the Legislature. The slightest hint of irregu- larity or impropriety in the Court is a cause for great anxiety and alarm. [263A-B] Per Sharma, J.:

1. The expression "public servant" used in the Prevention of 205 Corruption Act, 1947 is undoubtedly wide enough to denote every Judge, including the Judges of the High Courts and the Supreme Court [263D]

2.1 Section 2 of the Act adopts the definition of "public servant" as given in s. 21, I.P.C. which includes "Every Judge". If the legislature had intended to exclude Judges of the High Courts and the Supreme Court from the field of s. 5 of the Act, it could have said so in unambigu- ous terms instead of adopting the wide meaning of the ex- pression "public servant" as given in the Indian Penal Code. [266E-F]

2.2 No person is above the law. In a proceeding under Article 124 of the Constitution, a Judge can merely be removed from his office. He cannot be convicted and pun- ished. In a case where there is a positive finding recorded in such a proceeding against the Judge and on that ground he is removed from his office, it cannot be said that he will escape the criminal liability. In a civilised society the law cannot be assumed to be leading to such disturbing results. [265G; 266A-B]

2.3 It is not safe to assume that the Prevention of Corruption Act intended to make in its application any discrimination between the lower and the higher judiciary.

There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prose- cution while in identical circumstances a member of the subordinate judiciary is tried and convicted. Such an inter- pretation of the Act will militate against its constitution- al validity and should not, therefore, be preferred. [265C- E]

3.1 The power to remove a High Court Judge from his office does exist and has to be exercised in appropriate circumstances according to the provisions of Article |24 of the Constitution. It cannot, therefore be said that previous sanction for his prosecution cannot be made available. [266D-E]

3.2 Section 6(1)(c) of the Act speaks of the "authority competent to remove" the public servant "from his office".

An answer in the negative to the question as to whether there is some authority competent to remove a Judge of a High Court will be inconsistent with Article 124 clauses (4) and (5) read with Article 218 of the Constitution. Although more than one person are involved in the process, it is not permissible to say that no authority exists for the purpose of exercising the power to remove a High Court Judge from his office. [264A-C] As to who is precisely the authority in this regard is a matter 206 which does not arise in the instant case, but the vital question whether such an authority exists at all must be answered in the affirmative. [264C-D]

4.1 If the President is held to be the appropriate authority to grant the sanction without reference to the Parliament, he will be bound by the advice he receives from the Council of Ministers. This will seriously jeopardise the independence of judiciary which is undoubtedly a basic feature of the Constitution. [267D-E]

4.2 Since the Constitution itself has considered it adequate in the matter of dealing with serious accusations against the Judges by incorporating the provisions of clauses (4) and (5) in Article 124, they must be treated to be appropriate and suitable; and should be resorted to in the matter of prosecution also, in view of the Parliament enacting s. 6 of the Act in the language which attracts the constitutional ,provisions. [268B-C]

4.3 It is true that the grant of sanction will be de- layed until the accusation is examined according to the law enacted under Clause (5) of Article 124, but once that stage is over and a finding is recorded against the Judge, there should not be any hitch in combining the two matters-the removal and the grant of sanction-which are obviously inter- twined, for getting clearance from Parliament. [268E-H; 269A]

5.1 Protection to the public servant in general is provided under Article 311 of the Constitution and the interest of the subordinate judiciary is further taken care of by the High Courts, and this alongwith the provisions regarding previous sanction shields them from unjustified prosecution. Similarly, protection is available to the High Court and Supreme Court Judges through the provisions of clauses (4) and (5) of Article 124 of the Constitution. So far this aspect is concerned, the two categories of Judges--High Court and Supreme Court Judges on the one hand and the rest on the other--have not been treated by the law differently. [265C-E]

5.2 The protection to the independence of the Judiciary is in section 6 of the Prevention of Corruption Act, 1947, which by providing for previous sanction of the authority empowered to remove the Judge, leads to Article 124 of the Constitution. [268A-B]

6.1 Taking into consideration the independence of Judi- ciary as envisaged by the Constitution, if the President of India is treated as the sanctioning authority in the case of a Judge, and the Chief Justice of 207 India is consulted in the matter and steps-are taken in accordance with his advice, and the executive follows this rule strictly, a further protection from harassment of the Judges is uncalled for and unjustified criminal prosecution shall be not made available. But such a binding direction cannot be issued by this Court on the basis of the provi- sions of the Constitution and the Act. The approval of the Chief Justice of India can be introduced as a condition for prosecution only by the Parliament and not by this Court. If the Court starts supplementing the law as it stands now, it will be encroaching upon the legislative field. [266G-H; 267A-B; F-H; 268A]

7. Section 5(1)(e) does not contemplate a notice to be served on the accused. If the prosecuting authority after making a suitable enquiry, by taking into account the rele- vant documents and questioning relevant persons, forms the opinion that the accused cannot satisfactorily account for the accumulation of disproportionate wealth in his posses- sion the section is attracted. [269B-D]

8. In the instant case, the records clearly indicate that after duly taking all the appropriate steps it was stated that the assets found in the possession of the appel- lant in his own name and in the names of his wife and two sons, were disproportionate to his known sources of income during the relevant period and for which he "cannot satis- factorily account". [269D-E] Per Verma, J. (dissenting)-

1.1 A Judge or Chief justice of a High Court is a Con- stitutional functionary, even though he holds a public office and in that sense he may be included in the wide definition of a 'public servant'. However, the holder of an office who may be a public servant according to the wide definition of the expression in the prevention of corruption Act, but whose category for grant of sanction for prosecu- tion is not envisaged by s. 6 is outside the purview of the Act, not intended to be covered by the Act. [289F; 286D-E]

1.2 Section 6(1)(c) of the Prevention of Corruption Act, 1947, is inapplicable to a Judge of a High Court or the Supreme Court and such constitutional functionaries do not fall within the purview of the Act. [296B]

1.3 Previous sanction under s. 6 of the Prevention of Corruption Act, 1947, is a condition precedent for taking cognizance of an offence punishable under the Act, of a public servant who is prosecuted during 208 his continuance in the office. The public servant failing within the purview of the Act must invariably fail within one of the three clauses in s. 6(1). If the holder of an office, even though a public servant according to the defi- nition in the Act does not fail within any of the clauses (a), (b) or (c) of sub-section (1), he must be deemed to be outside the purview of the Act since this special enactment was not enacted to cover that category of public servants in spite of the wide definition of 'public servant' in the Act. [286A-B]

1.4 Section 6(1)(c) speaks of 'authority competent to remove', which plainly indicates the substantive competence of the authority to remove, not merely the procedural or formal part of it. The authority itself should be competent to remove or the one to decide the question of removal and not one which merely obeys or implements the decision of some other authority. It contemplates that the removing authority should have the competence to take a decision on the material placed before it for the purpose of deciding whether the public servant, against whom sanction is sought, has been prima facie guilty of abuse of his office so that there is occasion to bring about cessation of interrelation between the office and abuse by the holder of the office by his removal therefrom. [291A-C] R.S. Nayak v.A.R. Antulay, [1984] 2 SCC 183, referred to.

1.5 The competent sanctioning authority envisaged by s. 6( 1 )(c) is a vertical superior in the hierarchy having some power of superintendence over the functioning of the public servant. Where no such relationship exists in the absence of any vertical hierarchy and the holder of the public office is a constitutional functionary not subject to power of superintendence of any superior, s. 6 can have no application by virtue of the scheme engrafted therein. [291C-D]

1.6 Construction of s. 6(1)(c) of the Act treating the President as the competent authority to remove a High Court Judge would conflict with the provisions enacted in clauses (4) and (5) of Article 124 read with Article 218 of the Constitution. Such a construction has to be avoided. [295B- C]

1.7 The Prevention of Corruption Act is wholly workable in its existing form for the public servants within its purview and there is no impediment in its applicability to the large number of public servants who have been dealt with thereunder ever since its enactment. [274A] 209

1.8 In view of the special provisions enacted in clauses (4) and (5) of Article 124 read with Article 218 of the Constitution, non-application of s. 6(1) of the Preven- tion of Corruption Act, 1947 to the Constitutional function- aries such as Judges of the High Courts and the Supreme Court, would result only in the failure of the attempt to bring them within the purview of the Act, while the Act would continue to apply to the public servants in general who fail within the scheme of s. 6 of the Act 1or the pur- pose of grant of previous sanction for prosecution which is a condition precedent for cognizance of an offence punisha- ble under that Act. [295A-E]

2.1 The construction made of the provisions of the Act must also fit in within the scheme of clauses (4) and (5) of Article 124 read with Article 218 of the Constitution in order to present a harmonious scheme. [294C-B]

2.2 There can be no doubt that the expression 'misbeha- viour' is of wide import and includes within its ambit criminal miscondust as defined in sub-section (1) of s. 5 of the Act as also lesser misconduct of a Judge falling short of criminal misconduct. The special law envisaged by Article 124(5) for dealing with the misbehaviour of a Judge covers the field of 'investigation' and 'proof' of the 'misbeha- viour and the only punishment provided is by Article 124(4) of removal from office. [294D-E]

2.3 Article 124(5) of the Constitution is wide enough to include within its ambit every conduct of a Judge amounting to misbehaviour including criminal misconduct and prescribes the procedure for investigation and proof thereof. [294E]

2.4 Even for the procedure for investigation into any misbehaviour of a Judge as well as its proof, a law enacted by the Parliament under Article 124(5) is envisaged in the constitutional scheme. Such a law in the form of the Judges (Inquiry) Act, 1968 and the Rules framed thereunder has been enacted. These provisions were made in the Constitution and the law thereunder enacted when the Prevention of Corruption Act, 1947 was in the statute book. [294F-G]

2.5 The prior enactment and existence of the Prevention of Corruption Act, 1947 at the time when clauses (4) and (5) of Article 124 of the Constitution were framed, does indi- cate the constitutional scheme that a separate parliamentary law to deal with the investigation and proof of misbehaviour of a Judge was clearly contemplated by providing a special machinery for this category of constitutional func- 210 tionaries notwithstanding the general law available and applicable to the public servants in general, which included the Prevention of Corruption Act, 1947. [294G-H; 295A]

2.6 In view of the special provisions in the form of clauses (4) and (5) of Article 124 and Article 218 of the Constitution, and the special enactment by the Parliament under Article 124 (5) provided in the Constitutional scheme for Judges of the High Courts and the Supreme Court, it cannot be said that they are governed by the general provi- sions in addition to these special provisions enacted only for them. The need for these special provisions is a clear pointer in the direction of inapplicability to them of the general provisions applicable to the public servants holding other public offices, not as constitutional functionaries. [295A-B]

2.7 The view that Judges of the High Courts and the Supreme Court are outside the purview of the Prevention of Corruption Act, fits in with the constitutional scheme and is also in harmony with the several nuances of the entire existing law relating to the superior Judges while the contrary view fouls with it at several junctures and leaves many gaping holes which cannot be filled by judicial exer- cise. [303F-G]

2.8 The Prevention of Corruption Act, 1947, as amended by the 1964 amendment, is inapplicable to Judges of the High Courts and the Supreme Court. [304A] 46 Am. Jur. 2d. $ 84, referred to.

3.1 There is practical difficulty in applying criminal misconduct, defined in clause (e) of sub-section (1) of s. 5 of the Act to a Judge of a High Court or the Supreme Court. [296C]

3.2 The words in clause (e) of s. 5 (1) of the Act have to be given some meaning which would place the burden on the prosecution, howsoever light, to make out a prima facie case for obtaining sanction of the competent authority under s. 6 of the Act and this can be done only if it is read as a part of the scheme under which the public servant is required to furnish particulars of his assets with reference to which the disproportion and his inability to satisfactorily ac- count can be inferred. [297A-B]

3.3 While according sanction to prosecute under s. 6 of the Act, the competent authority has to satisfy itself about the public servant's inability to satisfactorily account for possession of disproportionate assets. The competent author- ity before granting sanction has to apply 211 its mind and be satisfied about the existence of a prima facie case for prosecution of the public servant on the basis of the material placed before it. In order to form an objective opinion, the competent authority must have before it the version of the public servant on the basis of which the conclusion can be reached whether it amounts to satis- factory account or not. [296E-F]

3.4 The rules applicable to the public servants in general regulating their conduct require them to furnish periodical information of their assets which form a part of their service record. In the case of such public servants whenever sanction to prosecute is sought under s. 6, the competent authority can form the requisite opinion on the basis of the available material including the service record of the public servant to code to the conclusion whether the offence under clause (e) of s. 5 (1) of possession of dis- proportionate assets which the public servant cannot satis- factorily account is made outprima facie. [296F-G, 297C-D]

3.5 In the case of Judges of the High Courts and the Supreme Court, there is no requirement under any provision of furnishing particulars of their assets so as to provide a record thereof with reference to which such an opinion can be formed and there is no vertical superior with legal authority enabling obtaining of information from the con- cerned Judge. This too is a pointer in the direction that even after the 1964 amendment of the Act the Legislature did not intend to include Judges of the High Courts and the Supreme Court within the purview of the enactment. [297D-F]

4.1 If the Act is applicable to Judges of the High Courts and the Supreme Court, it is obvious that the same must apply also to the Chief Justice of India, the Comptrol- ler and Auditor General and the Chief Election Commissioner.

Incongruous results would follow in such an event. [297F-G]

4.2 If the involvement of the Chief Justice of India is necessary even for commencing the investigation into the offence, and the President while granting the sanction under s. 6(1)(c) is also assumed to act on the advice of the Chief Justice of India and if it is permissible to do so in the absence of any 'such provision in the Act, the problem would arise where such action is contemplated against the Chief Justice of India himself. [297G-H; 298A]

4.3 Any provision which cannot apply to the Chief Justice of 212 India, cannot apply to the Judges of the Supreme Court, or for that matter even to the High Court Judges, since the Chief Justice of India is not a vertical superior of any of them, there being no such vertical hierarchy and the Chief Justice of India having no power of superintendence even over the High Court Judges, much less the Supreme Court Judges. [298A-B]

4.4 In the case of the Comptroller and Auditor General and the Chief Election Commissioner, the situation would be more piquant. The Chief Justice of India cannot be involved in the process relating to them and there is none else to fill that role in that situation. The Constitution, while providing that their position would be akin to that of a Judge of the Supreme Court, could not have intended to place them on a pedestal higher than that of a Supreme Court Judge. If the Act was intended to apply to these constitu- tional functionaries, it could not have been enacted leaving such gaping holes which are incapable of being plugged to present a comprehensive scheme for this purpose. [298C-E]

5.1 The need for sanction under s. 6 of the Act for prosecution of the holder of a public office indicates the ambit and scope of the enactment for deciding whether the holder of a public office falls within the purview of the enactment. No sanction for prosecution under s. 6 is re- quired after the public servant ceases to hold office, but it does not imply that every holder of a public office after ceasing to hold that office is within the purview of the enactment, even though during the tenure in office, only those public servants are within its ambit in whose case sanction under s. 6 must be obtained. [298F-H; 299A]

5.2 The ambit of the enactment is to be determined on the basis of the public office held by the public servant, which office is alleged to have been abused during the tenure for committing the offence of criminal misconduct under the Act and it is not the fact of continuance in that office or ceasing to hold it which decides the ambit of the enactment. If the holder of a public office during his tenure in office cannot be prosecuted without sanction under s. 6, then, no sanction for his prosecution after ceasing to hold the office may be necessary, but his prosecution is made because while in office he could be prosecuted with the previous sanction under s. 6. Conversely, if the holder of a public office while continuing in that office could not be prosecuted under this Act on account of inapplicability of s. 6 and, therefore, the non-feasibility of previous sanc- tion for prosecution under s. 6, then on his ceasing to hold 213

5.3 It is for the purpose of construing the provisions of the enactment and determining the scope and ambit thereof and for deciding whether the holder of a public office comes within the purview of the enactment that the feasibility of previous sanction for prosecution and applicability of s. 6 of the Act is important since it holds the key which unlocks the true vistas of the enactment. [299D-E]

5.4 The concept of the sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment that the pattern is incomplete without it. The clear legislative intent is that the enactment applies only to those in whose case sanction of this kind is contemplated and those to whom the provision of sanction cannot squarely apply are outside its ambit. The provision for sanction is like the keystone in the march of the enactment. Remove the keystone of sanction and the arch crumbles. [299E-G] R.S. Nayak v. A.R. A ntulay, [1984] 2 SCC 183, dis- tinguished.

6.1 The higher judiciary was treated differently in the Constitution indicating the great care and attention be- stowed in prescribing the machinery for making the appoint- ments. It was expected that any deviation from the path of rectitude at that level would be a rare phenomenon and for the exceptional situation the provision of removal in ac- cordance with clause (4) of Article 124 was made, the diffi- culty in adopting that course being itself indicative of the rarity with which it was expected to be invoked. It appears that for a rare aberrant at that level, unless the Judge resigned when faced with such a situation, removal from office in accordance with Article 124(4) was envisaged as the only legal sanction. If this was the expectation of the framers of the Constitution and their vision of the moral fibre in the higher echelons of the judiciary in free India, there is nothing surprising in the omission to bring them within the purview of the Prevention of Corruption Act, 1947, or absence of a similar legislation for them alone.

This position continued even during the deliberations of the Santham Committee which clearly mentioned in ics Report submitted in 1964 that it has considered the judiciary outside the ambit for its deliberations. Clearly, it was expected that the higher judiciary Whose word would be final in the interpretation of all laws including the Constitu- tion, will be comprised of men leading in the spirit of self-sacrifice concerned more with their obligations then rights, so that there would be no occasion for any one else to sit in judgment over them. [305H; 306A-D]

6.2 The fact that the Parliament did not enact any other law for 214 the investigation into allegations of corruption against a superior Judge and for his trial and punishment for that offence and rest content merely with enacting the Judges (Inquiry) Act, 1968, to provide for the procedure for remov- al of a Judge under Article 124 (4) is a clear pointer in the direction that the Parliament has not as yet considered it expedient to enact any such law for the trial and punish- ment on the charge of corruption of a superior Judge, except by his removal from office in the manner prescribed. The provisions of the Judges (Inquiry) Act, 1968, provide the procedure for investigation and proof of an allegation of corruption against a superior Judge and if the Prevention of Corruption Act, 1947 is held applicable to them, then there would be two separate procedures under these two enactments providing for investigation into the same charge. This anomaly and incongruity cannot be attributed to a conscious act of the Parliament while enacting Judges (Inquiry) Act, 1968, after the 1964 amendment in the Prevention of Corruption Act. [301D-F]

7.1 The constitutional functionaries namely Judges of High Courts, Judges of the Supreme Court, the Comptroller and Auditor General and the Chief Election Commissioner were never intended to fall within the ambit of the Act as ini- tially enacted in 1947, when provisions similar to Articles 124(4) and (5) of the Constitution were present in the Government of India Act, 1935, nor was any such attempt made by amendment of the Prevention of Corruption Act in 1964 and the same position continues in the Prevention of Corruption Act, 1988. [300A-B]

7.2 If there is now a felt need to provide for such a situation, the remedy lies in suitable parliamentary legis- lation for the purpose preserving the independence of judi- ciary free from likely executive influence while providing a proper and adequate machinery for investigation into allega- tions of corruption against such constitutional function- aries and for their trial and punishment after the investi- gation. The remedy is not to extend the existing law and make it workable by reading into it certain guidelines for which there is no basis in it, sing the Act was not intended to apply to them. [300B-C]

7.3 The test of applicability of the existing law would be the legal sanction and justiciability of the proposed guidelines without which it is unworkable in the case of such persons. In fact, the very need to read the proposed guidelines in the existing law by implication is a clear indication that the law as it exists does not apply to them.

Making the law applicable with the aid of the suggested guidelines, is not in the domain of judicial craftsmanship, but a naked usurpation of legislative power in a virgin field. [300C-D] 215

8.1 Laying down guidelines to be implicitly obeyed, if they find no place in the existing enactment and to bring the superior Judges within the purview of the existing law on that basis would amount to enacting a new law outside the scope of the existing law and not merely construing it by supplying the deficiencies to make it workable for achieving the object of its enactment. [273E-F] S.P. Sampath Kumar v. Union of India, [1987] 1 SCC 124, distinguished.

8.2 In case a legislation like the Prevention of Corrup- tion Act for superior Judges also is considered necessary at this point of time, the Parliament can perform its function by enacting suitable legislation, it being a virgin field of legislation. [274B]

8.3 There is no material to indicate that corruption in judiciary was a mischief to be cured when the Prevention of Corruption Act was enacted. For this reason, the desirabili- ty now expressed of having such a law cannot be an aid to construction of the existing law to widen its ambit and bring these constitutional functionaries within it. [273B-C]

8.4 Judicial activism can supply the deficiencies and fill gaps in an already existing structure found deficient in some ways, but it must stop sort of building a new edi- fice where there is none. [273D]

8.5 If it is considered that the situation has altered requiring scrutiny of the conduct of even Judges at the highest level, and that it is a matter for the Parliament to decide, then the remedy lies in enacting suitable legisla- tion for that purpose providing for safeguards to ensure independence of judiciary since the existing law does not provide for that situation. [306D-E]

8.6 Any attempt to bring the Judges of the High Courts and the supreme Court within the purview of the Prevention of Corruption Act by a seemingly constructional exercise of the enactment, appears to be an exercise to fit a square peg in a round hole when the two were never intended to match. [306E-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 400 of 1979.

From the Judgment and Order dated 27.4.79 of the Madras High Court in Criminal Misc. P. No. 265 of 1978. 216 Kapil Sibal, B.R.L. Iyengar, K.V. Mohan, S.R. Setia, K.R. Nambiar and A.K. Nigam for the Appellant.

A.D. Giri, Solicitor General, K.T.S. Tulsi, Additional Solicitor General, A.M. Khanwilkar and P. Parmeswaran for the Respondent.

The Judgment of the Court was delivered by RAY, J. I have had the advantage of deciphering the two draft judgments prepared by my learned brothers Shetty and Verma, JJ. I agree with the conclusions arrived at by my learned brother Shetty, J. Yet considering the great impor- tance of the questions involved in this matter, I deem it just and proper to consider the same and to express my own views.

Three very important questions fall for decision in this case. First of all whether a Judge of the Supreme Court or a Judge of a High Court is a public servant within the meaning of Section 2 of the Prevention of Corruption Act, 1947.

Section 2 of the Prevention of Corruption Act interprets a public servant as meaning a public servant as defined in section 21 of the Indian Penal Code i.e. Act 45 of 1860.

Section 21 of the Indian Penal Code states that a public servant denotes a person falling under any of the descrip- tion mentioned therein:

"Third--Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons any adjudicarory functions." Thus, the definition of a public servant is very wide enough to include Judges of the Supreme Court as well as Judges of the High Court. Section 77 of the Indian Penal Code provides immunity to the Judges in respect of any act done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

The next question is whether a judge of the Supreme Court or a Judge of High Court including the Chief Justice of the High Court can be prosecuted for having committed the offence of criminal misconduct as referred to in clause (e) of sub-section 1 of section 5 of the Prevention of Corrup- tion Act, 1947. Provisions of clause (e) of section 5(1) are as follows:- 217 "if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of inc