Power to proceed against other persons appearing to be guilty of offence under Cr.P.C

319. Power to proceed against other persons appearing to be guilty of offence

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—
(a)the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b)subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

Power to summon material witness, or examine person under section 311 of Cr.P.C

Parliament

311. Power to summon material witness, or examine person present

Any Court may,

at any stage of

any inquiry, trial or other proceeding under this Code,

summon any person as a witness,
or examine any person in attendance,

though not summoned as a witness, or recall and re-examine any person already examined;

and the Court shall summon and examine or recall and re-examine any such person

if his evidence appears to it to be essential to the just decision of the case.

COMMENT:

  • Section 311 Cr.P.C. is an interlocutory order- No Revision lies against an order u/s 311.whenever the petitions are filed under Section 482 Cr.P.C. with a view to circumvent the bar of revision under Section 397(2) Cr.P.C. against the interlocutory order and bar of second revision under 399(3) Cr.P.C., then ordinarily this court should be slow in exercising its powers under Section 482 Cr.P.C. Such powers should be exercised sparingly in a rarest of rare cases where there is grave mis-carriage of justice is done or there is an abuse of process by courts below while passing the impugned orders otherwise not.
  • [Rajendra Prasad vs Narcotic Cell Through Its Officer … on 12 July, 1999][ Lacuna IN PROSECUTION ]  And

(2001)4 SCC 759 (Rambhau & anr. v. State of Maharashtra)

(2004)4 SCC 158 (Zahira Habibulla H. Sheikh & anr. v. State of Gujarat & anr.);
(2005)1 SCC 115 (Satyajit Banerjee & ors. v. State of W.B. & ors.);
(2011)4 SCC 402 (Ashok Tshering Bhutia v. State of Sikkim); and

(2012)3 SCC 387 (Sudevanand v. State through C.B.I.)

Compounding of Offences under Cr.P.C

CODE OF CRIMINAL PROCEDURE
s.320. Compounding of offences. – (1) The offences punishable under the sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table :-
TABLE
Offence.
Section of the Indian Penal Code applicable.
Person by whom offence may be compounded
1.
2.
3
Uttering words.. etc.. with deliberate intent to wound the religious feelings of any person.
298.
The person whose religious feelings are intended to be wounded.
Voluntarily causing hurt.
323.
The person to whom the hurt is caused.
Voluntarily causing hurt on provocation.
334.
Ditto.
Voluntarily causing grievous hurt on provocation.
335.
Ditto.
Wrongfully restraining or confining any person.
341,342.
The person restrained or confined.
Wrongfully confining a person for three days or more.
343.
The person confined.
Wrongfully confining a person for ten days or more.
344.
Ditto.
Wrongfully confining a person in secret.
346.
Ditto.
Assault or use of criminal force.
352,355, 358.
The person assaulted or to whom criminal force is used.
Theft.
379.
The owner of the property stolen.
Dishonest misappropriation of property.
403.
The owner of the property misappropriated.
Criminal breach of trust by a carrier.. wharfinger. etc.
407.
Ditto.
Dishonestly receiving stolen property knowing it to be stolen.
411.
The owner of the property stolen.
Assisting in the concealment or disposal of stolen property. knowing it to be stolen.
414.
Ditto.
Cheating.
417.
The person cheated.
Cheating by personation.
419.
Ditto.
Fraudulent removal or concealment of property. etc. to prevent distribution among creditors.
421.
The creditors who are affected thereby.
Fraudulently preventing from being made

available for

his creditors a debt or demand due to the offender.
422.
Ditto.
Fraudulent execution of

deed

of transfer containing

false

statement of consideration.
423.
The person affected thereby.
Fraudulent removal or concealment of property.
424.
Ditto.
Mischief.. when the only loss or damage caused is loss or damage to a private person.
426, 427.
The person to whom the loss or damage is caused.
Mischief by killing or maiming

animal

.
428.
The owner of the animal.
Mischief by killing or maiming cattle.. etc.
429.
The owner of the cattle or animal.
Mischief by injury to works of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to

private

person.
430.
The person to whom the loss or damage is caused.
Criminal trespass.
447.
The person in possession of the property trespassed upon.
House-trespass.
448.
Ditto.
House-trespass to commit an offence (other than theft)

punishable with

imprisonment.
451.
The person in possession of the house trespassed upon.
Using a false trade or property mark.
482.
The person to whom loss or injury is caused by such use.
Counterfeiting a trade or property mark used by another.
483.
The person to whom loss or injury is caused by such use.
Knowingly selling. or exposing or possessing for sale or for manufacturing purpose. goods marked with a counterfeit property mark.
486.
Ditto.
Criminal breach of contract of service.
491.
The person with whom the offender has contracted.
Adultery.
497.
The husband of the woman.
Enticing or taking away or detaining with criminal intent a married woman.
498.
The husband of the woman and the woman.
Defamation.. except such cases as are specified against section 500 of the Indian Penal Code (45 of 1860) in column 1 of the Table under sub-section (2).
500.
The person defamed.
Printing or engraving matter.. knowing it to be defamatory.
501.
Ditto.
Sale of printed or engraved substance containing defamatory matter. knowing it to contain such matter.
502.
Ditto.
Insult intended to provoke a breach of the peace.
504.
The person insulted.
Criminal intimidation.
506.
The person intimidated.
Inducing

person

to believe himself

and

object of divine displeasure.
508.
The person induced.]
(2) The offences punishable under the Sections of the Indian Penal Code (45 of 1860), specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending be compounded by the persons mentioned in the third column of that Table :-
TABLE
Offence
Section of the Indian Penal Code applicable
Person by whom offence may be compounded
1
2
3
Causing miscarriage.
312
The woman to whom miscarriage is caused.
Voluntarily causing grievous hurt.
325
The person to whom hurt is caused.
Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.
337
Ditto
Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.
338
Ditto
Assault or criminal force in attempting wrongfully to confine a person.
357
The person assaulted or to whom the force was used.
Theft by clerk or servant of property in possession of master.
381
The owner of the property stolen.
Criminal breach of trust.
406
The owner of property in respect of which the breach of trust has been committed.
Criminal breach of trust by a clerk or servant.
408
Ditto
Cheating a person whose interest the offender was bound either by law or by legal contract to protect.
418
The person cheated.
Cheating and dishonestly inducing delivery of property or the making alteration or destruction of a valuable security.
420
The person cheated.
Marrying again during the

life-time

of a husband or wife.
494
The husband or wife of the person so marrying.
Defamation against the President or the Vice-President or the Governor of a State or the Administrator of a Union territory or a Minister in respect of his public functions when instituted upon a complaint made by the Public Prosecutor.
500
The person defamed.
Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman.
509
The woman whom it was intended to insult or whose privacy was intruded upon.]
[(3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under Section 34 or 149 of the Indian Penal Code (45 of 1860) may be compounded in like manner.]
(4)(a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence.
(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court, compound such offence.
(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section.
(7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.
(8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this section.

The Notaries Rules, 1956

Published vide S.R.O. 324, dated 14.2.1956, published in the Gazette of India, Extraordinary, Part II, Section 3, page 191, dated 15.2.1956.

In exercise of the powers conferred by section 15 of the Notaries Act, 1952 (53 of 1952), the Central Government hereby makes the following rules, namely:—

1. Short title .—These [rules] may be called The Notaries Rules, 1956.

2. Definitions .—In these rules, unless the context otherwise requires,—

(a) “appropriate Government” means, in relation to a notary appointed by the Central Government, the Central Government and in relation to a notary appointed by the State Government, the State Government;

(b) “Form” means a Form appended to these Rules;

(c) “the Act” means the Notaries Act, 1952 (53 of 1952);

[(d) “Schedule” means the Schedule appended to these rules.]

[2-A. A person applying in Form II for appointment as a notary may submit the memorial direct to the Competent Authority of the Appropriate Government.

3. Qualifications for appointment as a notary .—No person shall be eligible for appointment as a notary unless on the date of the application for such appointment,—[(a) a person had been practicing at least for ten years, or

(aa) a person belonging to Scheduled Castes/Scheduled Tribes and other Backward Classes had been practicing at least for seven years, or

(ab) a woman who had been practicing at least for seven years, as a legal practitioner, or]

[(b) he had been a member of the Indian Legal Service under the Central Government, or

(c) he had been at least for ten years,—

(i) a member of Judicial Service; or

(ii) held an office under the Central Government or a State Government requiring special knowledge of law after enrollment as an advocate; or

(iii) held an office in a department of Judge Advocate General or in the legal department of the armed forces.]

4. Application for appointment as a notary .— [(1) A person may make an application for appointment as a notary (hereinafter called “the applicant”), through the concerned District Judge or the Presiding Officer of the Court or Tribunal where he practices as an Advocate, in the Form of memorial addressed to such officer or authority (hereinafter referred to as the “competent authority”) of the appropriate Government as that Government may, by notification in the Official Gazette, designate in this behalf.]

(2) The memorial shall be drawn by a person referred to in clause (a) of rule 3 in accordance with Form I and by a person referred to in clauses (b) and (c) of the said rule in accordance with Form II.

(2-A) A person applying in Form II for appointment as a notary may submit the memorial direct to the Competent Authority of the Appropriate Government.

(3) The memorial of a person referred to in clause (a) of rule 3 shall be signed by the applicant and shall be countersigned by the following persons:—

(a) a Magistrate;

(b) a Manager of a nationalized bank;

(c) a merchant; and

(d) two prominent inhabitants of the local area within which the applicant intends to practice as a notary.]

6. Preliminary action on application .— ] [(1) The competent authority shall examine every application received by him and if he is satisfied that the application is not complete in all respects or the applicant does not possess the qualifications specified in rule 3, or that any previous application of the applicant for appointment as a notary was rejected within six months before the date of the application, shall reject it summarily and inform the applicant accordingly.][(2) If the competent authority does not reject the application under sub-rule (1)

[* * *]

[(b) he may, if he thinks fit, ascertain from any Bar Council, Bar Association, Incorporated Law Society or other authority in the area where the applicant proposes to practice, the objections, if any, to the appointment of the applicant as notary, to be submitted within the time fixed for the purpose.]

7. Recommendation of the competent authority .— [(1) The competent authority shall, after holding such inquiry as he thinks fit and after giving the applicant an opportunity of making his representations against the objections, if any, received within the time fixed under sub-rule (2) of rule 6, make a report to the appropriate Government recommending that the applicant may be allowed to appear before the Interview Board.

(2) The competent authority shall also make his recommendation in the report under sub-rule (1) regarding the persons by whom the whole or any part of the costs of the application including the cost of hearing, if any, shall be borne.(3) In making his recommendation under sub-rule (1), the competent authority shall have due regard to the following matters, namely:—

(a) whether the applicant ordinarily resides in the area in which he proposes to practice as a notary;

(b) whether, having regard to the commercial importance of the area in which the applicant proposes to practice and the number of existing notaries practicing in the area, it is necessary to appoint any additional notaries for the area;

(c) whether, having regard to his knowledge and experience of commercial law and the nature of the objections, if any, raised in respect of his appointment as a notary, and in the case of a legal practitioner also to the extent of his practice, the applicant is fit to be appointed as a notary;

(d) where the applicant belongs to a firm of legal practitioners, whether, having regard to the number of existing notaries in that firm, it is proper and necessary to appoint any additional notary from that firm; and

(e) where applications from other applicants in respect of the area are pending, whether the applicant is more suitable than such other applicants.

[Provided that in respect of categories (b) and (c), if the memorial in Form II is found to be in order, the competent authority may issue certificate of practice as Notary directly by exempting appearance before the Interview Board.

7-A. Constitution of the Interview Board .—(1) If the appropriate Government allows that the applicant may be asked to appear before the Interview Board, the competent authority shall inform the applicant to appear before the Interview Board, on the date, time and place fixed, to judge the competency of the applicant for being appointed as a notary. The Interview Board shall submit its recommendations to the appropriate Government.][(2) For the said purpose, one or more Interview Boards shall be constituted by the appropriate Government from amongst its officers dealing with legal matters and the Chairperson of every Interview Board shall be an officer not below the rank of Joint Secretary or Law Officer of that Government.][Provided that the appropriate Government may dispense with the condition of holding of interviews for which reasons are to be recorded in writing.

7-B. Transitional provision .—(1) All the memorials received by the Competent Authority till 28th February, 2009 and which are pending shall be processed/examined in accordance with the provisions of the rules as amended by the Notaries (Amendment) Rules, 2009.(2) The fresh memorials shall only be submitted on or after 1st July, 2009.

8. Appointment of a notary .— [(1) ] [On receipt of the recommendations of the Interview Board the appropriate Government shall consider the recommendation and shall,—]

[(a) allow the application in respect of the whole of the area to which it relates; or

(b) allow the application in respect of any part of the area to which it relates; or

(c) reject the application, and shall also make such orders as the Government thinks fit regarding the persons by whom the whole or any part of the cost of the application including the cost of hearing, if any, shall be borne.]

[(2) An applicant shall be informed of every order passed by the appropriate Government under sub-rule (1).

(3) Any applicant whose application has been rejected ] [or allowed in respect of only a part of the area to which it relates][or against whom an order as to cost has been made under sub-rule (1) may, within sixty days of the date of the order apply to the appropriate Government for reviewing the order and that Government may, after making such further inquiry as it thinks fit pass such order as it considers necessary.

[(4)] Where the application is allowed, the appropriate Government shall appoint the applicant as a notary and direct his name to be entered in the Register of Notaries maintained by that Government under section 4 of the Act and issue to him a certificate on payment of prescribed fees authorizing him to practice in the area to which the application relates or in such part thereof as the appropriate Government may specify in the certificate, as a notary for a period of [five years] from the date on which the certificate is issued to him.

[(4-A) The appropriate Government may on and after the 9th May, 2001, appoint notaries in a State or Union territory, as the case may be, not exceeding the number of notaries specified in the Schedule:Provided that the number of notaries whose certificate of practice has been renewed under sub-section (2) of section 5 of the Act shall be included in the total number of notaries appointed for the purpose of counting the total number of notaries specified in the Schedule:Provided further that if in a State or Union territory the number of notaries appointed before the ninth day of May, 2001 exceeds the number of notaries specified in the Schedule, such notaries shall continue to be so appointed in that State or Union territory, as the case may be.]

[Provided also that in case, request for enhancement of quota is received from Union Territory or the State concerned, the same shall be considered as per the following criteria:-

(a) if there is an increase in the population of the concerned State or the Union Territory;

(b) if there is increase in the number of districts or tehsil or taluka of the concerned State of Union Territory.]

(5)The Register of Notaries shall be in Form II-A and the certificate of practice shall be in Form II-B.

8-A. Extension of area of practice .—A notary public who is already in possession of a certificate of practice in respect of a particular area, may for sufficient reasons, apply for extension of his area of practice. If the original certificate of practice had been issued by a State Government and the new area of practice applied for lies within the territory of that State, the application for extension of the area of practice shall be made to that State Government. In all cases where the original certificate of practice had been issued by the Central Government, the application for extension of the area of practice shall be made to the Central Government. Applications for the extension of the area of practice where the new area lies either wholly outside the State or partly inside and partly outside the State which granted the original certificate shall be made to the Central Government for the issue of a fresh certificate. The State Government or the Central Government, as the case may be, shall, after considering the reasons stated in the application and other factors, pass such orders thereon as it may deem fit. Any extension of the area of the practice shall not have the effect of extending the period of validity of the original certificate beyond the period of ] [five years][specified in rule 8(4). ]

8-B. Renewal of certificate of practice .—The certificate of practice issued under sub-rule (4) of rule 8 may be renewed for a further period of five years on payment of prescribed fee. An application for renewal of Certificate of Practice shall be submitted to the appropriate Government before three months from the date of expiry of its period of validity:Provided that the appropriate Government may, after considering the reasons stated in the application, relax the condition of submission of application for renewal of certificate of practice before the above specified period.][9. Fees for issue and renewal of certificate of practice and extension of area .—The fees for issue and renewal of certificate of practice and extension of area shall be as under:—

(a) Issue of certificate of practice Rs.  1000
(b) Extension of area of practice Rs.  750
(c) Renewal of certificate of practice Rs.  500
(d) Issue of a duplicate certificate of practice Rs.  300

10. Fees payable to a notary for doing any notarial act .— ] [(1) Every notary may charge fees not exceeding the rates mentioned below, namely:—(

(a) For noting an instrument  
  If the amount of the instrument does not exceed rupees 10,000 Rs. 35
  If it exceeds rupees 10,000 but does not exceed rupees 25,000 Rs. 75
  If it exceeds rupees 25,000 but does not exceed rupees 50,000 Rs. 110
  If it exceeds 50,000  
(b) For protesting an instrument:-  
  If the amount of the instrument does not exceed rupees 10,000 Rs. 35
  If it exceeds rupees 10,000 but does not exceed rupees 25,000 Rs 75
  If it exceeds rupees 25,000 but does not exceed rupees 1,00,000 Rs. 110
  If it exceeds rupees 1,00,000 Rs. 150
(c) For recording a declaration of payment for honour Rs. 75
(d) Duplicate protests half the charge for original
(e) For verifying, authenticating, certifying or attesting the execution of any instrument Rs. 15
(f) For presenting any promissory note, hundi or bill of exchange for acceptance or payment or demanding better security Rs. 35
(g) for administering oath to, or taking affidavit from any person Rs. 15
(h) For preparing any instrument intended to take effect in any country or place outside Indian in such form an language as may conform to the law of the place where such deed is intended to operate Rs. 150
(i) For attesting or authenticating any instrument to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate Rs. 150
(j) For translating and verifying the translation of any document from one language to another Rs. 75
(k) For noting and drawing up ship’s protest, boat protest or protest relating to demurrage and other commercial matters Rs. 150
(l) For certifying copies of documents as true per page copies of the original Rs. 5 per page minimum Rs. 10
(m) For any other notarial act Such sum as the appropriate Government may fix from time to time.]

(2) The rates of fees to be charged by a notary shall be displayed by him in conspicuous place inside as well as outside his chamber or office.(3) In addition to the above fees, a notary may charge the traveling allowance by road or by rail at the rate of rupees five per kilometer.

11. Transaction of business by a notary .—(1) A notary in transacting the business under the Act shall use the Forms set forth in the Appendix to these rules.[(2) Besides recording declaration of payment for honor a notary shall also register nothings and protests made. Every notary shall maintain a notarial register in the prescribed Form XV.]

(3) Where any demand of acceptance or payment or better security has been made by a clerk, a notary shall, after examination of the entry in the Register relating to such demand, affix his signature thereto, and cause the clerk to affix his signature also to the entry.

(4) Each notary shall, before bringing the Notarial Register into use, add a certificate on the title page specifying the number of pages it contains. Such certificate shall be signed and dated by the notary.

(5) Every notary shall permit the District Judge or such officers as the appropriate Government from time to time appoint in this behalf to inspect his register at such times, not often than twice a year, as the District Judge or officer may fix. District Judge or officer appointed by the State Government will have power to lodge a report to the appropriate Government for taking action against a notary.

(6) When the original instrument is in a language other than, English, any noting or protest or entry in his register which has to be made in respect of the instrument by a notary may be made either in that language or in English.

(7) In making presentment of bills or notes a notary shall observe the provisions of Chapter V of the Negotiable Instruments Act, 1881 (26 of 1881).(8) The notary may—

(1) draw, attest or certify documents under his official seal including conveyance of properties;

(2) note and certify the general transactions relating to negotiable instruments;

(3) prepare a will or other testamentary documents; and

(4) prepare and take affidavits for various purposes for his notarial acts.

(9) Every notary shall grant a receipt for the fees and charges realized by him and maintain a register showing all the fees and charges realized.[12. Seal of notary .—Every notary shall use a plain circular seal of a diameter of 5 cm. as indicated by a drawing given below, bearing his name, the name of the areas within which he has been appointed to exercise his functions, the registration number and the circumscription “NOTARY”, and the name of the Government which appointed him.]


13. Inquiry into the allegations of professional or other misconduct of a notary 
.

[(1) An inquiry into the misconduct of a notary may be initiated either suo motu by the appropriate Government or on a complaint received in Form XIII.][(2) Every such complaint shall contain the following particulars, namely:—

(a) the acts and omissions which, if proved, would render the person complained against unfit to be a notary;

(b) the oral or documentary evidence relied upon in support of the allegations made in the complaint.

(3) The appropriate Government shall return a complaint which is not in the proper Form or which does not contain the aforesaid particulars to the complainant for representation after compliance with such objections and within such times as the appropriate Government may specify:Provided that if the subject-matter in a complaint is, in the opinion of the said Government substantially the same as or covered by, any previous complaint and if there is no additional ground, the said Government shall file the said complaint without any further action and inform the complainant accordingly.(4) Within sixty days ordinarily of the receipt of complaint, the appropriate Government shall send a copy thereof to the notary at his address as entered in the Registered of Notaries.][(4-A) Where an inquiry is initiated, suo motu by the appropriate Government, the appropriate Government shall send to the notary a statement specifying the charge or charges against him, together with particulars of the oral or documentary evidence relied upon in support of such charge or charges.]

[(5) ] [A notary against whom an inquiry has been initiated may, within fourteen days of the service on him of a copy of the complaint under sub-rule (4) or of the statement of the charges under sub-rule (4-A), as the case may be,][or within such time as may be extended by the appropriate Government, forward to that Government a written statement in his defense verified in the same manner as a pleading in a Civil Court.(6) If on a perusal of ] [the written statement,] [if any, of the notary concerned and other relevant documents and papers, the appropriate Government consider that there is a prima facie case against such notary, the appropriate Government shall cause an inquiry to be made in the matter by the competent authority. If the appropriate Government is of the opinion that there is no prima facie case against the notary concerned, ] [the complaint or charge shall be filed][and the complainant and the notary concerned shall be informed accordingly.][(7) Every notice issued to a notary under this rule shall be sent to him by registered post. If any such notice is returned unserved with an endorsement indicating that the addressee has refused to accept the notice or the notice is not returned unserved within a period of thirty days from the date of its dispatch, the notice shall be deemed to have been duly served upon the notary.][(8) It shall be the duty of the appropriate Government to place before the competent authority all facts brought to its knowledge which are relevant for the purpose of an inquiry by the competent authority.

(9) A notary who is proceeded against] [shall have right to defend himself before the competent authority either in person or through a legal practitioner or any other notary.(10) Except as otherwise provided in these rules, the competent authority shall have the power to regulate his procedure relating to the inquiry in such manner as he considers necessary and during the course of inquiry, may examine witnesses and receive any other oral or documentary evidence.(11) The competent authority shall submit his report to the Government entrusting him with the inquiry.(12)(a) The appropriate Government shall consider the report of the competent authority, and if in its opinion a further inquiry is necessary may cause such further inquiry to be made and a further report submitted by the competent authority.

(b) If after considering the report of the competent authority, the appropriate Government is of the opinion that action should be taken against the notary the appropriate Government may make an order—

(i) canceling the certificate of practice and perpetually debarring the notary from practice; or

(ii) suspending him from practice for a specified period; or

(iii) letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved.

(13) Notification of removal .—The removal of the name of any notary from the Register of Notaries from practice, as the case may be, shall be notified in Official Gazette and shall also be communicated in writing to the notary concerned.

14. Submission of returns .—Every notary shall, in the first week of January every year, submit to the appropriate Government, an annual return in Form XIV of the notarial acts done by him during the preceding year.

15. Each notary shall have an office within the area mentioned in the certificate issued to him under rule 8 and he shall exhibit it in a conspicuous place threat a board showing his name and his designation as a notary.

16. If a notary has to deal with a case which does not in terms attract any of the Forms prescribed, the notary should adopt the form nearest to his case with such modifications thereto as he thinks the exceptional peculiarities of the case to justify.

17. Annual publication of the list of notaries .—The list of notaries to be published by the Central Government and every State Government under section 6 of the Act, shall be in the following Form :—

Sl.No. Name of Notary Residential and professional address Qualifications Area in which he is authorized to practice Remarks

[THE SCHEDULE]

[See rule 8 (4-A)]

       Name of State/Union territory Maximum number of notaries to be appointed by the Central Government Maximum number of notaries to be appointed by State Government or Unionterritory Administration
               (1) (2) (3)
1. Andhra Pradesh [865] [1306]
2. Assam 575 575
3. Bihar 925 [1925]
4. Gujarat [1760] [1407]
5. Kerala [1000] [845]
6. Madhya Pradesh 1,125 [2500]
7. Tamil Nadu [1360] [2500]
8. Maharashtra [3700] [1,313]
9. Karnataka [1266] [1,013]
10. Orissa 750 750
11. Punjab [957] 425
12. Rajasthan [1500] [2000]
13. Uttar Pradesh 1,750 [2,625]
14. West Bengal 450 [3625]
15. Jammu & Kashmir 350 [525]
16. Nagaland 200 200
17. Haryana [1,070] 475
18. Himachal Pradesh 300 [450]
19. Manipur 225 225
20. Tripura 100 100
21. Meghalaya 175 175
22. Sikkim 100 100
23. Mizoram 200 200
24. Arunachal Pradesh 325 325
25. Goa 50 [250]
26. Uttaranchal 325 325
27. Chhattisgarh 400 [1350]
28. Jharkhand 450 450
29. Delhi [1000] [325]
30. Andman and Nicobar Islands 50 50
31. Lakshadweep 25 25
32. Dadra and Nagar Haveli 25 25
33. Daman & Diu 50 50
34. Pondicherry 100 100
35. Chandigarh [86] 25

[FORM I]

MEMORIAL

[See rule 4 (2)]

1. Name of the applicant ….………………………………………………………………
2. Father’s name………………………………………………………………………….. Photograph
3. Date of Birth….…………………………………………………..……………………..
4. Whether SC/ST/OBC/General…………………………………………………………
5. Address (Residence).……………………………………………………………..……
    Pin………..………………………………………………………………………………
   Telephone…………………………Fax……………………………E-Mail…………………………………………….
   Address (Office)……………………………………………………………………………………………………..
   Pin…………………………………………………………………………………………………………………….
   Telephone…………………………Fax……………………………E-Mail……………………………………………..
6. Educational Qualifications (Please attach attested photocopies)……………………………………………….
7. Enrolment number & date (Please attach attested photocopies)……………………………………………….
8.  Practising in…………………………………………………………………………………………………………
     Civil side…………………………………………………………………………………………………………….
     Criminal side………………………………………………………………………………………..………………
     Taxation……………………………………………………………………………………………………..………
     Revenue courts…………………………………………………………………………………………………….
9.  Whether income-tax assessee…………………………………………………………………………………..
10.The memorial of (name of the applicant in block letters) showeth………………………………………………

1. that the memorialist is a person eligible for appointment as a notary under the Notaries Act, 1952, and clause (a) of rule 3 of the Notaries Rules, 1956;2. that the memorialist resides in…………..(here state the name of the local area or name of court where he intends to practise) and will reside for upwards of………..(state how long);3. that the number of notaries practising in the local area is insufficient for the requirements thereof (the grounds of the statement should be added);4. that no previous application of the memorialist has been rejected or withdrawn by him, within the preceding six months;The memorialist, therefore, prays that the government be pleased to appoint and admit him as a notary under and by virtue of the Notaries Act, 1952 (53 of 1952) and clause (a) of rule 3 of the Notaries Rules, 1956 to practise in…………..(here state the name of the local area).Dated………………..day of…………….20……………

……………………………………..

Signature of the applicant

  Name and address of signatories Profession Name and address of the firm/organization Signature with seal
1.        
2.        
3.        
4.        
5.        

Note. – Under rule 4(3) the memorial should be countersigned by a Magistrate, a manager of a Nationalised Bank, a merchant and two prominent inhabitants of the area where the intends to practise as a notary.

[FORM II]

[See rule 4(2)]

1. Name of the applicant ….………………………………………………………………    
2. Father’s/Husband’s name…………………………………………………………….. Photograph  
3. Date of Birth….…………………………………………………..……………………..  
4. Whether SC/ST/OBC/General…………………………………………………………  
5. Address (Residence).……………………………………………………………..……  
   Pin………..………………………………………………………………………………  
   Telephone…………………………Fax……………………………E-Mail…………………………………………….
  Address (Office)……………………………………………………………………………………………………..
   Pin…………………………………………………………………………………………………………………….
  Telephone…………………………Fax……………………………E-Mail……………………………………………..
6. Educational Qualifications ………………………………………….…………………………………………….
7. Date of joining Government service……………………………………………………………………………….
8. Date of retirement…..………………………………………………………………………………………………
9. Post held at the time of retirement………………………………………………………………………………..
10. Area, where the memorialist intends to practise as Notary…….………………………………………………

Dated…………………..day of…………………. 20………..

…………………………………….

Signature of the applicant

Note. – Necessary proofs about eligibility under rule 3(b) and (c) of the Notaries Rules, 1956 is to be attached. Rule 3(b) and (c) are as follows:-

3. Qualifications for appointment as a notary. – No person shall be eligible for appointment as a notary unless on the date of the application for such appointment,-

(a) ………………………………………………….

(b) he had been a member of the Indian Legal Service under the Central Government, or

(c) he had at least for ten years,-

(i) been a member of Judicial Service; or

(ii) held an office under the Central Government or a State Government requiring special knowledge of law after enrolment as an advocate; or

(iii) held an office in the department of Judge Advocate General or in the legal department of the armed forces.”

[FORM II-A]

REGISTER OF NOTARIES

[See rule 8(5)]

Sl. No. Full Name and date of birth of notary Residential and professional addresses of notary Date on which the name of notary is entered in the register Qualifications of notary Area in which notary may practice Remarks

[FORM II-B]

[See rule 8(5)]

GOVERNMENT OF……………………………..

(Emblem)

CERTIFICATE OF PRACTICE

Certified that…………………son/daughter/wife…………………..of……. ……resident of……………has been appointed as a notary under the Notaries Act, 1952 (53 of 1952) and is authorized to practice as such in and throughout…………………..for a period of [three years]………………Given under my hand and seal of the Government of ………………….this……………day of……………………………Dated…………….day of…………..20…………….

[Competent Authority (Notaries), Government of India/Secretary to the Government of…………………………………..(Name of the State)]

FORM III

FORM OF NOTING FOR DISHONOUR

(See section 8)

(To be made upon the instrument or upon a paper attached thereto, or partly upon each).

Reference to page in Notarial Register……………………………Date of presentment and dishonour by non-acceptance/non-payment ……………………………………….Reason, if any, assigned for dishonour (or, if the instrument has not been expressly dishonoured, reason why holder treats it as dishonoured).Date of note…………………………………….

……………………………….

Signature of Notary

Notary’s charges

FORM III-A

FORM OF NOTING FOR DISHONOUR

(See section 8)

(To be entered in the Notarial Register)

(Copy of the bill and endorsements)

On the……………day of…………..20…..the above bill was, at the request of……………..(here give the name), presented by me for acceptance to……………(here give the name), the drawee personally (at his residence or usual place of business) in……………(town or village) and, I received, the following answer:-………………………………………………………………………………………………………………………………………………………………………………………………………………(The said bill, is therefore, noted for non-acceptance.)Place and date………………….

…………………………………………….

Signature of Notary

(This note is to be signed in the margin by the notary’s clerk also if he presented the bill).

FORM IV

FORM OF PROTEST OF BILL OF EXCHANGE FOR NON-ACCEPTANCE

(See section 8)

On the………………day of……….20….I,…………..(here give the name), notary appointed under the Notaries Act, 1952, of………in……….(here state the local area for which the notary has been appointed) in………..at the request of………(here give the name) of………did, at……….in person, and having failed to do so, then by registered letter cause due and customary presentment to be made to, and did demand acceptance of the bill of exchange hereto annexed) or “a literal transcript where of and of everything written or printed thereon is hereto annexed”) from ………(there give the name), the person upon whom the said bill is drawn, to which demand he made answer (state terms of answer, if any)(or “to which demand he gave no answer”) wherefore, I, the said notary, at the request aforesaid, by this writing, do, in the presence of…….(here give the name) and……..(here give the name), witnesses, protest the drawer of the said bill of exchange and all other parties thereto and all others concerned for all exchange, re-exchange and all other parties thereto and all others concerned for all exchange, re-exchange, and all costs, damages, and interest present and to come for want of acceptance of the said bill.

Which I attest

……………………….

Signature of Notary

Place and date…………………

Signature of witnesses(Should be of the locality)1………………………………….2………………………………….

FORM IV-A

FORM OF ACTS OF HONOUR

(a) Act of honour on acceptance. (To be written at the foot of the protest).

Afterwards appeared before me, the said notary, on the………….day of………20……..(here give the name), and declared that he would accept the bill of exchange before protested under protest for the honour and upon the account of………….(here give the name), the second endorser on the said bill.Holding the second endorser and all others concerned always bound and obliged to indemnify him, the said appearer, for his said acceptance and in case of payment of by him, for his re-imbursement in due form of law and according to custom.

Which I attest

…………………………

Signature of Notary

Place and date…………..

(b) Act of honour on payment. (To be written at the foot of the protest).

Afterwards appeared before me, the said notary, on the……….day of………….20……… (here give the name), and declared that he would pay the bill of exchange before protested under protest for the honour and upon the account of………….(here give the name), the endorser on the said bill.Holding the said endorser and all others concerned always bound and obliged for reimbursement in due form of law and according to custom.

Amount Rs……………………………………….
Natarial charges Rs……………………………………….

Which I attest

Signature of Notary

Place and Date………

Received this………………….day of………………..20……………..,from……………………….. (here give the name), the sum of Rs……………………………., the amount of the said bill and notarial charges thereon.

……………………………

Signature of Notary

FORM V

FORM OF PROTEST OF BILL OF EXCHANGE FOR NON-ACCEPTANCE WHEN THE DRAWEE CANNOT BE FOUND

(See section 8)

(a) Where search was made by notary in person.

On the………day of…….20……., I……. (here give the name), a notary appointed under the Notaries Act, 1952 of ……….in……….(here state the local area for which the notary has been appointed) in………….at the request of………..(here give the name), of…………., did in person make due search at…………for……………(here give the name), in order to present to and demand from him acceptance of the bill of exchange hereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”) which is drawn upon the said……..(here give the name), but was unable to find him; wherefore, I, the said notary, at the request aforesaid, by this writing, do in the presence of…….(here give the name), and…….(here give the name), witnesses protest against the drawer of the said bill of exchange and all other parties thereto and all others concerned for all exchange, re-exchange and all costs, damages and interest present and to come for want of acceptance of the said bill.

Which I attest

…………………………….

Signature of Notary

Place and date…………….

Signature of witnesses(Should be of the locality)1……………………………………2……………………………………

(b) Where registered letter was sent to the drawee.

On the…………..day of………20…….I,……….(here give the name), a notary appointed under the Notaries Act, 1952, of……….in (here state the local area for which the notary has been appointed) in……..at the request of……….(here give the name), of ……….., did send by post a registered letter addressed to…………(here give the name) at………where in I enclosed and demanded from him acceptance of the bill of exchange thereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”) which is drawn upon the said………….(here give the name) but the letter was returned undelivered because the said………(here give the name) could not be found; wherefore I, the said notary at the request aforesaid, by this writing, do, in the presence of……..(here give the name) and………..(here give the name), witnesses, protest against the drawer of the said bill of exchange and all other parties thereto and all others concerned for all exchange, re-exchange, and all costs, damages and interest present and to come for want of acceptance of the said bill.

Which I attest

…………………………

Signature of Notary

Place and date…………

Signature of witnesses(Should be of the locality)1…………………………………2…………………………………

FORM VI

FORM OF PROMISSORY NOTE OR BILL OF EXCHANGE FOR NON-PAYMENT

(See section 8)

On the……………day of……….20……I,……(here give the name), a notary appointed under the Notaries Act, 1952, of…….in………(here state the local area for which the notary has been appointed) in……….at the request of………(here give the name), of………..did at……..in person and having failed to do so, then by registered letter, cause due and customary presentment to be made to and demand payment of the promissory note (or bill of exchange, as the case may be) here to annexed (or “literal transcript whereof, and of everything written or printed) thereon is hereto annexed”) from………..(here give the name) the maker of the said promissory note (or drawee, acceptor, of the said bill of exchange, as the case may be), to which demand he made answer”); (state the term of his answer, if any) (or “to which demand he gave answer”); wherefore, I, the said notary, at the request aforesaid by his writing, do in the presence of ……..(here give the name), and ………..(here give the name), witnesses protest against the maker of the said promissory note (or the drawer of the said bill of exchange, as the case may be) and all other parties thereto and all others concerned for all exchange, re-exchange, and all costs, damages, and interest present and to come for want of payment of the said promissory note (or bill of exchange, as the case may be).

Which I attest

…………………………..

Signature of Notary

Place and date…………………

Signatures of witnesses(Should be of the locality)1…………………………………..2…………………………………..

FORM VII

FORM PROTEST OF PROMISSORY NOTE OR BILL OF EXCHANGE FOR NON-PAYMENT WHEN THE MAKER, DRAWEE, OR ACCEPTOR (AS THE CASE MAY BE) CANNOT BE FOUND

(See section 8)

(a) Where search was made by notary in person.

On the…………..day of……..20…….I,…..(here give the name), a notary appointed under the Notaries Act, 1952, of………..in…….(here state the local area for which the notary has been appointed) in……….., at the request of……….(here give the name) of………did in person make due search at……….for……….(here give the name), the maker (or drawee, or acceptor, as the case may be) in order to present to and demand from him payment of the promissory note (or bill of exchange, as the case may be) hereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”) but was unable to find him wherefore, I, the said notary, at the request aforesaid, by this writing, do, in the presence of………….(here give the name), and…………..(here give the name), witnesses, protest against the maker of the said promissory note (or drawer of said bill of exchange, as the case may be) and all other parties thereto and all others, concerned for all exchange, re-exchange, and all costs, damages, the interest present and to come for want of payment of the said promissory note (or bill of exchange, as the case may be).

Which I attest

……………………….

Signature of Notary

Place and date…………..

Signature of witnesses(Should be of the locality)1…………………..2…………………..

(b) Where registered letter was sent to the maker, drawee or acceptor.

On the…………day of……..20……..I,……….(here give the name) a notary appointed under the Notaries Act, 1952, of………in…………(here state the local area for which the notary has been appointed) in………., at the request of………(here give the name), of…………., did sent by post a registered letter addressed to……….(here give the name) at……..the maker or drawee, acceptor, as the case may be), wherein I enclosed and demanded from him payment of the promissory note (or bill of exchange as the case may be), hereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”), but the letter was returned undelivered because the said……..(here give the name), could not be found; wherefore I, the said notary, at the request aforesaid, by this writing, do, in the presence of………….(here give the name) and……..(here give the name) witnesses, protest against the maker of the said promissory note (or the drawer of the said bill of exchange, as the case may be) and all other parties thereto and all other concerned for all exchange, re-exchange, and all costs, damages, and interest present and to come for want of payment of the said promissory note (or bill of exchange, as the case may be).

Which I attest

……………………….

Signature of Notary

Place and date……….

Signature of witnesses(Should be of the locality1…………………………………..2…………………………………..

FORM VIII

FORM OF PROTEST OF BILL OF EXCHANGE FOR BETTER SECURIT

(See section 8)

On the………..day of…….20……..I,…….(here give the name), a notary appointed under the Notaries Act, 1952, of…….in……..(here state the local area for which the notary has been appointed) in……….at the request of………(here give the name), did exhibit the bill of exchange hereto annexed (or “a literal transcript whereof and of everything written or printed therein is hereto annexed”) to……….(here give the name), the person on whom the said bill is drawn, and whose acceptance appears thereon, and did demand better security for the payment thereof when the same should become payable in consequence of the said…..(here give the name), having become insolvent (or “his credit having been publicly impeached”, as the case may be), to which demand he made answer, (state the terms of the answer if any), (or “to which demand he gave no answer”); wherefore I, the said notary, at the request aforesaid, by this writing, do, in the presence of……..(here give the name) and ………..(here give the name), witnesses, protest against the drawer of the said bill of exchange and the acceptor and all other parties thereto, and all others concerned for all exchange, re-exchange, and all costs, damages, and interest present and to come for want of better security for the payment of the said bill when due and payable.

Which I attest

……………………….

Signature of Notary

Place and date………….

Signature of witnesses(Should be of the locality)1………………………………..2………………………………..

FORM IX

FORM OF PROTEST OF BILL OF EXCHANGE FOR BETTER SECURITY WHEN THE ACCEPTOR CANNOT BE FOUND

(See section 8)

(a) Where such protest was made by notary in person.On the………..day of………20…….I,…….(here give the name), a notary appointed under the Notaries Act, 1952 of……….in……….(here state the local area for which the notary has been appointed) in………at the request of………(here give the name), of……..did not in person make due search at………..for……….(here give the name) in order to exhibit the bill of exchange hereto annexed (“or a literal transcript whereof and of everything written or printed thereon is hereto annexed”) to the said…….(here give the name) the person on whom the said bill is drawn, and whose acceptance appears thereon, and demand better security for the payment thereof, when the same should become payable in consequence of his having become insolvent (or “his credit having been publicity impeached”, as the case may be), but was unable to find him; wherefore I, the said notary, at the request aforesaid, by this writing, do in the presence of………..(here give the name) and…….(here give the name) witnesses, protest against the drawer of said bill of exchange and the acceptor and all other parties thereto and all other concerned for all exchange, re-exchange, and all costs, damages, and interest present and to come or want of better security for the payment of the said bill when due and payable.

Which I attest

…………..

Signature of Notary

Place and date………….

Signature of witnesses(Should be of the locality)1………………..2………………..(b) Where registered letter was sent to the acceptor.On the…………day of…………20…….I,………(here give the name) a notary appointed under the Notaries Act, 1952, of…..in……….(here state the local area for which the notary has been appointed) in……..at the request of………..(here give the name), of………….did send by post a registered letter address to……….(here give the name), at……..wherein I enclosed the bill of exchange hereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”), and did the such letter demand from the said………(here give the name), the person on whom the said bill is drawn and whose acceptance appears thereon, better security for the payment thereof when the same should become payable in consequence of his having become insolvent (or “his credit having been publicly impeached”, as the case may be), but the said letter was returned undelivered because the said…………(here give the name) could not be found; wherefore I, the said notary, at the request aforesaid, by this writing, do in the presence of……….(here give the name) and ……..(here give the name), witnesses, protest against the drawer of the said bill of exchange and the acceptor and all other parties thereto and all others concerned for all exchange, re-exchange, and all costs, damages and interest present and to come for want of better security for the payment of the said bill when due and payable.

Which I attest

……………………….

Signature of Notary

Place and date………….

Signature of witnesses(Should be of the locality)1…………………………………….2…………………………………….

FORM X

(See section 8)

FORM OF NOTICE OF PROTEST TO DRAWER TO BE GIVEN BY NOTARY

Take notice that a bill of exchange for……….(here state the amount) drawn by you under date the……….on…….and payable at………has been dishonored by nonacceptance (or non-payment, as the case may be) and protested, and that you will be held liable thereon.

………………………….

Signature of Notary

Place and date………………………….

FORM XI

FORM OF NOTICE OF PROTEST TO ENDORSER TO BE GIVEN BY NOTARY

(See section 8)

Take notice that a bill of exchange for……..(here state the amount) drawn by……….and payable at……..and bearing your endorsement has been dishonoured by non-acceptance (or non-payment, as the case may be) and protested, and that you will be held liable thereon.

………………………………

Signature of Notary

Place and Date…………….

FORM XII

FORM OF NOTARIAL ACT OF DECLARATION HAVING BEEN MADE BY A PAYER FOR HONOUR

(See section 8)

On the……….day of…….. 20……..I,……….(here give the name), a notary appointed under the Notaries Act, 1952, of………in………..(here state the local area for which the notary has been appointed) in………do hereby certify that the bill of exchange hereto annexed (or “a literal transcript whereof and of everything written or printed thereon is hereto annexed”)(now protested for non-payment) was this day exhibited to……….(here give the name), of…………in the State of…………(or to ……….(here give the name), his agent in this behalf, as the case may be), who declared before me that he, the said…………..(here give the name), would pay the amount of the said bill under protest for the honour of………….(here inset the name of the party for whose honour the payment is to be made), holding the said……..(here insert the name of the party for whose honour the payment is to be made) and the drawer and all other proper persons responsible to him, the said………….(here give the name), for the amount of the said bill and for all proper costs, interest, damages, and expenses; I have, therefore, in the presence of………..(here give the name) and …………..(here give the name), witnesses, granted this Notarial Act of honour accordingly.

Which I attest

………………………..

Signature of Notary

Place and date………….

Signature of witnesses(Should be of the locality)1…………………………………….2…………………………………….

[FORM XIII

FORM OF COMPLAINT

Before the appropriate government under the Notaries Act, 1952

Between…………………………………………………………………………………………………………………………………………………………………………………petitioner

and………………………………………………………………………………………………………………………………………………………………………………………respondent

Petitioner’s address………………………………………………………………………………………………………………………………………………………………………………………Respondent’s address…………………………………………………………………………………………………………………………………………………………………………………..Particulars of complaint in paragraphs consecutively numbered……………………………………………………………………………………………………………………..Particulars of evidence oral and documentary, if any, to substantiate the complaint………………………………………………………………………………………..

Verification

I,………………………………………………….., the petitioner do hereby declare that what is stated above is true to the best of my information and belief.Verified today the…………………………day of………………………..20……………………at…………………………….

……………………………………

Signature]

[FORM XIV]

FORM OF RETURN TO BE SUBMITTED BY A NOTARY

(See rule 14)

1. Name and address of notary…………………………………………………………………………………………………………………………………………………………………….2. Registration number…………………………………………………………………………………………………………………………………………………………………………………3. Particulars of notarial acts done during the year ……………………………………………………………………………………………………………………………………….

              Type of work Name of cases Fee charged
1. Noting an instrument
2. Protesting an instrument
3. Recording a declaration of payment for honour.
4. Duplicate protests.
5. Verifying, authenticating, certifying or attesting the execution of any instrument.
6. Presenting any promissory note, hundi or bill of exchange for acceptance or payment or demanding better security.
7. Administering oath to, or taking affidavit from any person.
8. Preparing any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate.
9. Attesting or authenticating any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the  place where such deed is intended to operate.
10. Translating and verifying the translation of, any document from one language into another.
11. Other notarial acts.

…………………………………..

Signature of Notary

Place and Date…………………..

[FORM XV

NOTARIAL REGISTER

(See rule 11(2)]

Sl. No. Date Name of notarial act Name of executant or person concerned with full address Contents of document Notarial fee stamp affixed Prescribed fee Fee charged Sl. No. of Receipt Book Signature of person concerned Signature of notary]
1 2 3 4 5 6 7 8 9 10 11
   

 

 

 

 

         

The Notaries Act, 1952

Acts


The Notaries Act, 1952

(53 of 1952)

[9 th August , 1952]

.An Act to regulate the profession of notaries.

Be it enacted by Parliament as follows:


1. Short title, extent and commencement 
.(1) This Act may be called The Notaries Act , 1952.(2) It extends to the whole of India [* * *].(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.


2. Definitions 
.In this Act, unless the context otherwise requires,

[* * *]

(b) instrument includes every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded;

[(c) legal practitioner means an advocate entered in any roll under the provisions of the Advocates Act, 1961 (25 of 1961);]

(d) notary means a person appointed as such under this Act:

Provided that for a period of two years from the commencement of this Act, it shall include also a person who, before such commencement, was appointed a notary public [under] the Negotiable Instruments Act, 1881 (26 of 1881),  and is, immediately before such commencement, in practice in [any part of India:[Provided further that in relation to the State of Jammu and Kashmir the said period of two years shall be computed from the date on which this Act comes into force in that State;]

(e) prescribed means prescribed by rules made under this Act;

(f) Register means a Register of Notaries maintained by the Government under section 4;

(g) State Government, in relation to a Union territory, means, the administrator thereof.

3. Power to appoint notaries .The Central Government, for the whole or any part of India, and any State Government, for the whole or any part of the State, may appoint as notaries any legal practitioners or other persons who possess such qualifications as may be prescribed.

4. Registers .(1) The Central Government and every State Government shall maintain, in such form as may be prescribed, a Register of the notaries appointed by that Government and entitled to practise as such under this Act.(2) Every such Register shall include the following particulars about the notary whose name is entered therein, namely:

(a) his full name, date of birth, residential and professional address;

(b) the date on which his name is entered in the Register;

(c) his qualifications; and

(d) any other particulars which may be prescribed.

5. Entry of names in the Register and issue or renewal of certificates of practice .(1) Every notary who intends to practise as such [may], on payment to the Government appointing him of the prescribed fee, if any, be entitled

(a) to have his name entered in the Register maintained by that Government under section 4; and

(b) to a certificate authorising him to practise for a period of [five years] from the date on which the certificate is issued to him.

[(2) The Government appointing the notary, may, on receipt of an application and the prescribed fee, renew the certificate of practice of any notary for a period of five years at a time.]

6. Annual publication of lists of notaries .The Central Government and every State Government shall, during the month of January each year, publish in the Official Gazette a list of notaries appointed by that Government and in practice at the beginning of that year together with such details pertaining to them as may be prescribed.

7. Seal of notaries .Every notary shall have and use, as occasion may arise, a seal of such form and design as may be prescribed.

8. Functions of notaries .(1) A notary may do all or any of the following acts by virtue of his office, namely:

(a) verify, authenticate, certify or attest the execution of any instrument;

(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;

(c) note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (26 of 1881), or serve notice of such note or protest;

(d) note and draw up ships protest, boats protest or protest relating to demurrage and other commercial matters;

(e) administer oath to, or take affidavit from, any person;

(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;

(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;

(h) translate, and verify the translation of, any document from, one language into another;

[(h-a) acts as a Commissioner to record evidence in any civil or criminal trial if so directed by any Court or authority;

(h-b) act as an arbitrator, mediator or conciliator, if so required;]

(i) any other act which may be prescribed.

(2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal.

9. Bar of practice without certificate .(1) Subject to the provisions of this section, no person shall practise as a notary or do any notarial act under the official seal of a notary unless he holds a certificate of practice in force issued to him under section 5:

Provided that nothing in this sub-section shall apply to the presentation of any promissory note, hundi or bill of exchange for acceptance or payment by the clerk of a notary acting on behalf of such notary.

(2) Nothing contained in sub-section (1) shall, until the expiry of two years from the commencement of this Act, apply to any such person as is referred to in proviso to clause (d) of section 2:

Provided that in relation to the State of Jammu and Kashmir the said period of two years shall be computed from the date on which this Act comes into force in that State.

10. Removal of names from Register .The Government appointing any notary may, by order, remove from the Register maintained by it under section 4 the name of the notary if he

(a) makes a request to that effect; or

(b) has not paid any prescribed fee required to be paid by him; or

(c) is an undischarged insolvent; or

(d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practise as a notary [; or]

[(e) is convicted by any Court for an offence involving moral turpitude; or

(f) does not get his certificate of practice renewed.]

11. Construction of references to notaries public in other laws .Any reference to a notary public in any other law shall be construed as a reference to a notary entitled to practise under this Act.

12. Penalty for falsely representing to be a notary, etc .Any person who

(a) falsely represents that he is a notary without being appointed as such, or

(b) practises as a notary or does any notarial act in contravention of section 9,

shall be punishable with imprisonment for a term which may extend to [one year], or with fine, or with both.

13. Cognizance of offence .(1) No Court shall take cognizance of any offence committed by a notary in the exercise or purported exercise of his functions under this Act save upon complaint in writing made by an officer authorised by the Central Government or a State Government by general or special order in this behalf.(2) No Magistrate other than a Presidency Magistrate or a Magistrate of the first class shall try an offence punishable under this Act.

14. Reciprocal arrangements for recognition of notarial acts done by foreign notaries .If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by [notification] in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.

15. Power to make rules .(1) The Central Government may, by notification in the Official Gazette, make [rules] to carry out the purposes of this Act.(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) the qualifications of a notary, the form and manner in which applications for appointment as a notary may be made and the disposal of such applications;

(b) the certificates, testimonials or proofs as to character, integrity, ability and competence which any person applying for appointment as a notary may be required to furnish;

[(c) the fees payable for appointment as a notary and for the issue and renewal of a certificate of practice, area of practice or enlargement of area of practice and exemption whether wholly or in part, from such fees in specified classes of cases;]

(d) the fees payable to a notary for doing any notarial act;

(e) the form of Registers and the particulars to be entered therein;

(f) the form and design of the seal of a notary;

(g) the manner in which inquiries into allegations of professional or other misconduct of notaries may be made;

(h) the acts which a notary may do in addition to those specified in section 8 and the manner in which a notary may perform his functions;

(i) any other matter which has to be, or may be prescribed.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

16. Amendment of Act 26 of 1881 .[Repealed by the Repealing and Amending Act, 1957 (36 of 1957), section and Schedule I.]…


Notaries Rules, 1956

 

The Oaths Act, 1969

(44 of 1969)

[26th December, 1969]

An Act to consolidate and amend the law relating to judicial oaths and for certain other purposes.

Be it enacted by Parliament in the Twentieth Year of the Republic of India as follows:


1. Short title and extent 
.

(1) This Act may be called The Oaths Act , 1969.(2) It extends to the whole of India except the State of Jammu and Kashmir.

2. Saving of certain oaths and affirmations .

Nothing in this Act shall apply to proceedings before Courts-martial or to oaths, affirmations or declarations prescribed by the Central Government with respect to members of the Armed Forces of the Union.

3. Power to administer oaths .

(1) The following Courts and persons shall have power to administer, by themselves or, subject to the provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:

(a) all Courts and persons having by law or consent of parties authority to receive evidence;

(b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.

(2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf

(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or

(b) by the State Government, in respect of other affidavits.

4. Oaths or affirmations to be made by witnesses, interpreters and jurors .

(1) Oaths or affirmations shall be made by the following persons, namely:

(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) jurors:

Provided that, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

5. Affirmation by person desiring to affirm .

A witness, interpreter or juror may, instead of making an oath, make an affirmation.

6. Forms of oaths and affirmations .

(1) All oaths and affirmations made under section 4 shall be administered according to such one of the forms given in the Schedule as may be appropriate to the circumstances of the case:Provided that if a witness in any judicial proceeding desires to give evidence on oath or solemn affirmation in any form common amongst, or held binding by persons of the class to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, allow him to give evidence on such oath or affirmation.(2) All such oaths and affirmations shall, in the case of all Courts other than the Supreme Court and the High Courts, be administered by the presiding officer of the Court himself, or, in the case of a Bench of Judges or Magistrates, by any one of the Judges or Magistrates, as the case may be.

7. Proceedings and evidence not invalidated by omission of oath or irregularity .

No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.

8. Persons giving evidence bound to state the truth .

Every person giving evidence on any subject before a Court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.

9. Repeal and saving .

(1) The Indian Oaths Act, 1873 (10 of 1873), is hereby repealed.(2) Where, in any proceeding pending at the commencement of this Act, the parties have agreed to be bound by any such oath or affirmation as is specified in section 8 of the said Act, then, notwithstanding the repeal of the said Act, the provisions of sections 9 to 12 of the said Act shall continue to apply in relation to such agreement as if this Act had not been passed.


The Schedule

(See section 6)

Forms of Oaths or Affirmations

Form No. 1

(Witnesses):

I dothat what I shall state shall be the truth, the wholetruth and nothing but the truth.

Form No. 2 (Jurors):swear in the name of GodI dothat I will well and truly try and true deliverancemake between the State and the prisoner(s) at the bar, whom I shall have in charge, and a true verdict give according to the evidence.

Form No. 3 (Interpreters):swear in the name of GodI do that I will well and truly interpret and explain allquestions put to and evidence given by witnesses and translate correctly and accurately all documents given to me for translation.

Form No. 4 (Affidavits):I do that this is my name and signature (or mark) and that the contents of this my affidavit are true.

The Cinematograph (Certification) Rules, 1983

 

Published vide G.S.R. 381(E), dated 9.6.1983.

In exercise of the powers conferred by section 8 of the Cinematograph Act, 1952 (37 of 1952), and in supersession of the Cinematograph (Censorship) Rules, 1958 the Central Government hereby makes the following rules, namely:–1. Short title and commencement. – (1) These rules may be called The Cinematograph (Certification) Rules, 1983.(2) They shall come into force on 1st day of June, 1983.2. Definitions. – In these rules, unless the context otherwise requires,–

(i) “Act” means the Cinematograph Act, 1952 (37 of 1952);

(ii) “advisory panel” means the advisory panel of the Board constituted under rule 7;

(iii) “applicant” means a person applying for certification of a film for public exhibition under section 4;

(iv) “Assistant Regional Officer” means an assistant regional officer appointed under rule 9 and includes the Secretary to Chairman;

(v) “Board” means the Board of Film Certification constituted under section 3;

(vi) “Chairman” means the Chairman of the Board;

(vii) “Chief Executive Officer” means a Chief Executive Officer appointed under rule 9;

(viii ) “Examining Officer” means [a Chief Executive Officer or] a Regional Officer or an Additional Regional Officer or an Assistant Regional Officer, or the Secretary to Chairman or such other officer who is a member of the examining committee appointed under sub-rule (1) of rule 22;

[(ix) “feature film” means fictionalised story film exceeding 2000 metres in length in 35 mm or corresponding length in other gauges or on video;]

(x) “imported” means bringing into India from a place outside India;

(xi) “long film” is a film with a length exceeding 2000 metres in 35 mm or corresponding length in other gauges or compact video disc;

(xii) “member” means a member of the Board and includes the Chairman;

(xiii ) “Regional Officer” means a Regional Officer appointed under rule 9 and includes a Chief Executive Officer, an Additional Regional Officer and an Assistant Regional Officer, or such other officer appointed under that rule;

[(xiv) “Secretary to the Tribunal” means the officer of Government appointed to function as the Secretary to the Appellate Tribunal under sub-section (7) of section 5-D;

(xv) “section” means a section of the Act;

[(xvi) “short film” means a film with a length upto and including 2000 metres in length in 35 mm or corresponding length in other gauges or on video tape or compact video disc;].

3. Terms of office. – (1) A member of the Board shall hold office during the pleasure of the Central Government.(2) Subject to the provisions of sub-rule (1), the Chairman shall hold office for a period of three years and shall continue to hold office until his successor is appointed:

Provided that pending the appointment of his successor the Central Government may appoint another person to act as Chairman for a period not exceeding one year.(3) Subject to the provisions of sub-rule (1), every other member shall hold office for a period not exceeding three years.(4) A retiring member or a member whose term of office has expired by efflux of time shall be eligible for re-appointment.[3-A. Representation of women in the Board. – The Central Government may take such steps as it thinks fit to appoint women members in the Board so that there is due representation for women.]

4. Casual vacancy. – A casual vacancy caused in the Board by resignation, death or removal of a member or otherwise shall be filled by the appointment of another member who shall hold office for the full term of membership provided under sub-rule (3) of rule 3.5. Headquarters. – Unless otherwise directed by the Central Government, the headquarters of the Board shall be at Bombay.

6. Temporary absence of Chairman. – Notwithstanding anything contained in these rules, when the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Central Government may nominate a member of the Board who will discharge the functions of the Chairman until the Chairman resumes his duties.

7. Constitution of advisory panels. – (1) The Central Government shall constitute an advisory panel at each of the regional offices of the Board.(2) An advisory panel constituted under sub-rule (1) shall consist of such number of members as the Central Government may, after consultation with the Board, determine.(3) The Central Government may, after consultation with the Board, appoint any person whom it thinks fit to be a member of an advisory panel:Provided that the Central Government may dispense with such consultation in respect of such number of members not exceeding one-third of the total number of the members of the advisory panel, as that Government thinks fit:

[Provided further that there shall be due representation to women in an advisory panel.

8. Term of office of members of advisory panels. – (1) A member of an advisory panel shall hold office during the pleasure of the Central Government.(2) Subject to the provisions of sub-rule (1), every such member shall hold office for a period not exceeding two years:

Provided that any person holding office as a member immediately before the commencement of these rules shall hold such office only for the remainder of the term for which he was appointed.(3) A retiring member or a member whose term of office has expired by efflux of time shall be eligible for re-appointment.(4) A casual vacancy in an advisory panel caused by the resignation, death or removal of any member or otherwise shall be filled by fresh appointment and the person so appointed shall hold office for a period not exceeding two years.(5) The Central Government may remove from office any member of an advisory panel before the expiration of his term of office:

Provided that a member appointed to an advisory panel after consultation with the Board shall not be so removed except on the recommendation of or after consultation with the Board.

9. Officers of the Board. – (1) For the purpose of enabling the Board to perform its functions under the Act, the Central Government may appoint a Chief Executive Officer, Regional Officers, Additional Regional Officers, Assistant Regional Officers and such other officers at the headquarters and at each of the regional offices of the Board:Provided that the Central Government may delegate to the Chairman/Chief Executive Officer subject to such conditions and limitations, if any, as may be specified by it, the power of appointment conferred on it under this sub-rule, other than the powers of appointment in relation to the posts of Regional Officer and Additional Regional Officer:Provided further that the Chairman/Chief Executive Officer may grant leave to or suspend or remove from service any officer appointed by him under the powers delegated to him under this sub-rule.(2) The Regional Officers, Additional Regional Officers, Assistant Regional Officers and other officers appointed under sub-rule (1) shall perform such duties as may be assigned to them under these rules, or by the Chairman/Chief Executive Officer or by the Board.10. Duties of the Board. – The Board shall, in addition to other duties prescribed under these rule,–(1) submit an annual report to the Central Government reviewing the work done by the Board during the preceding financial year and the report shall contain a detailed analytical study of the trends in film industry;(2) prescribe the manner in which the registers, records and accounts of the Board shall be kept; and(3) review the work of Regional Officers and members of the Advisory Panels.11. Assessment of public reactions to films. – With a view to determining the principles to be observed in certifying films, the Board may take such steps as it thinks fit to assess public reactions to films, and for that purpose, the Board may hold symposia or seminars of film critics, film writers, community leaders and persons engaged in the film industry, or such other persons and also undertake local or national surveys to study the impact of various kinds of films on the public mind.12. Terms and conditions of service (other than salary and allowances) of the Chairman of the Board and allowances payable to the other members of the Board. – (1) The Chairman, if he is a paid full-time officer, shall be entitled to draw travelling and daily allowances as admissible under the Fundamental and Supplementary Rules and shall be entitled to leave and leave salary and such other benefits and shall be governed by such conditions of service as are applicable to Central Government officers engaged on contract:Provided that in the case of an officer of an All India or Central Civil or General Central Service or State Service being appointed as Chairman, he shall be entitled to leave and leave salary and other benefits admissible to officers of such service so long as he continues to belong to that service:Provided further that if an officer who has already been holding a post under Government on contract with the benefits of Contributory Provident Fund is appointed as Chairman, he shall be allowed to carry forward the unutilised portion of leave earned by him during previous service and he shall also continue to be eligible for the Contributory Provident Fund benefits.(2) Every honorary member (including the Chairman where he does not receive any salary) may,–

(a) if he is an out-station member,-

(i) travel by air or by train as admissible according to the orders issued by the Central Government from time to time in respect of journeys undertaken by him for the performance of his duties as such members;

(ii) be paid a consultancy fee for attending the preview of a film or meeting of the Revising Committee or the Board at the rate of Rs. 75 for each day of such preview or meeting;

(iii) be paid daily allowance at the rate of Rs. 50 per day for the day preceding the meeting and that following the meeting, if the member actually stays at the place of the meeting;

(b) if he is a local member, be paid a consultancy fee for attending the preview of a film or meeting of the Revising Committee or the Board at the rate of Rs. 50 for each day of such preview or meeting:

Provided that daily allowance will not be admissible in addition for the day or days for which consultancy fee is paid.

13. Allowances payable to members of the advisory panel. – (1) Every member of the advisory panel shall be entitled to draw travelling and daily allowances for journeys performed by him for attending the meetings of the Board outside the headquarters or for the purpose of discharging any other duties prescribed under the Act on the scale provided under the Fundamental and Supplementary Rules applicable to First Grade officers of Government.(2) Every member of the advisory panel shall be entitled to receive a consultancy fee for attending a preview of film or a meeting of the Committee or Panel or for verification of cuts and affected reels at the rate of Rs. 50 per diem, provided that daily allowance in terms of sub-rule (1) above will not be admissible in addition for the day or days for which consultancy fee is paid.[(3) Notwithstanding anything contained in sub-rules (1) and (2), if any member of the advisory panel is a Member of Parliament, he shall not be entitled to any remuneration other than the allowances defined in clause (a) of section 2 of the Parliament (Prevention of Disqualification) Act, 1959 (10 of 1959).]14. Meetings of the Board. – (1) The Board shall ordinarily meet once a quarter for the transaction of business but the Chairman may at any time call an extraordinary meeting, if he considers it necessary to do so.(2) Meetings of the Board shall be held at such places as the Chairman may at his discretion fix for the purpose.

15. Co-opted members. – The Chairman may co-opt the Chief Executive Officer or anyone or more of the Regional Officers or any officer of the Central Government as a member or members of the Board for the purpose of attending a particular meeting of the Board and such officer or officers shall then be entitled to participate in the deliberations of the Board at that meeting but shall not be entitled to vote.16. Notice of meeting. – (1) At least [twenty-one clear days’] notice of all meetings of the Board shall be given to each member but an urgent meeting may be called by the Chairman at three clear days’ notice.(2) The notice shall state the business to be transacted at the meetings and no business other than that stated shall be transacted at such meeting except with the consent of the Chairman or on his motion.

17. Business ordinarily to be transacted at meetings. – The business of the Board shall ordinarily be transacted at a meeting duly called in accordance with the provisions of these rules:Provided that the Chairman may, if he thinks fit, circulate any urgent matter among the members for their opinion.18. Quorum. – At every meeting of the Board four members if the Chairman be present, and six members if he be absent, shall form a quorum.

19. President of the meeting. – Meetings of the Board shall be presided over by the Chairman or in his absence by a member elected by the members present from among themselves.

20. Question to be decided by majority of votes. – Every question before the Board shall be decided by a majority of votes and in the case of equality of votes, the Chairman or the member elected to preside under rule 19, as the case may be, shall have a second or casting vote.

21. Application for examination of films. – (1) Every application to certify a film for public exhibition shall be made in writing in [Form I or Form I-A or Form II or Form II-A, as the case may be,] set out in the Second Schedule according as the film is produced in or imported into India.(2) The application shall be addressed to the Board and delivered to the Regional Officer concerned as per the First Schedule:Provided that where films are imported into India, the Chairman may direct or permit applications in respect of them to be delivered to a Regional Officer other than the Regional Officer to whom such applications would have been delivered but for this proviso:Provided further that the Chairman may in the following circumstances direct or permit applications in respect of any films or class of films to be delivered to a Regional Officer other than the Regional Officer to whom such applications would have been delivered but for this proviso, namely:–

(i) where the Chairman is satisfied that immediate action for examination of a film is necessary; or

(ii) where examination of a film with the assistance of persons well acquainted with the language of the film is not possible at the place where, but for the provisions of this proviso, it would have been delivered for examination; or

(iii) for such other reasons as may be specified by the Chairman in writing.

(3) Every such application shall be accompanied by–

(a) the fee prescribed under rule 36;

(b) eight copies in the case of feature films and five copies in the case of other films, of the synopsis of the film, together with full credit titles and of the full text of the songs if any with reel number, one copy of complete shooting script as prescribed and a statement showing the reelwise length of the film:

Provided that where the film is in a language other than English or any Indian language, the applicant shall furnish eight typed or printed copies of the translation in English or Hindi of the synopsis and of the full text of the songs, if any, and one copy of the translation in English or Hindi of dialogues:-Provided further that in the case of a film referred to in the preceding proviso, the Regional Officer may direct the applicant to furnish also eight typed or printed copies of the translation in English or Hindi of the full text of the dialogue, speeches or commentary;

[(bb) a declaration made in writing by the producer of the film declaring that no cruelty was caused to the animals used during shooting of the films produced in India.

Explanation I.-For the purposes of this clause–

(i) “animal” shall have the meaning assigned to it in clause (a) of section 2 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960);

(ii) “cruelty” means treating the animals in any manner specified in clauses (a) to (o) of sub-section (1) of section 11 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960);]

(c) if the application is made for the purpose of a fresh certificate under sub-rule (2) of rule 29, the original certificate or duplicate certificate; [and]

[(d) if the application is made by a person other than the producer or copyright holder of the film, an authorisation in writing on a stamped paper of appropriate value to be notified by the Chairman from the producer or copyright holder of the film.]

(4) If, in the case of a newsreel, documentary or other short film, the Regional Officer is satisfied that the applicant is not able to furnish the documents specified in sub-rule (3) along with the application for reasons beyond his control, the Regional Officer may direct that such documents may be furnished within such period after the examination of the film as he may specify or that the submission of such documents may be dispensed with.(5) No such application shall be accompanied by any documents other than those mentioned in sub-rule (3).[* * *]

Explanation .-For the purpose of certification for public exhibition, every revised version or shorter version of a film shall be deemed to be a fresh film.22. Examining committee. – (1) On receipt of an application under rule 21, the Regional Officer shall appoint an Examining Committee to examine the film. The examination shall be made at the cost of the applicant on such date, at such place and at such time as the Regional Officer may determine.(2) The Examining Committee shall consist of,–

(a) in the case of a short film, a member of the advisory panel and an examining officer either of whom shall be a woman; and

(b) in the case of a long film, four members of the advisory panel and an examining officer of whom two persons shall be women:

Provided that if the examining officer is unavoidably absent at the examination of a film, the Examining Committee shall consist of two members of the advisory panel in a case falling under clause (a) and five members of the advisory panel in a case falling under clause (b) :

[Provided further that in the Examining Committee, in a case falling under clause (a) one member shall be a woman and in a case falling under clause (b) two members shall be women.]

(3) The film to be examined by the Examining Committee shall be in its final form with the background music and all sound effects duly recorded on the film itself.

(4) All previews of films for the purposes of examination for certification and the reports and records relating thereto shall be treated as confidential.

(5) The names of the members of the Examining Committee examining the film shall not be disclosed to any official or non-official not concerned with the preview of the particular film or to any other person including the applicant or his representative.

(5-A) Nothing in sub-rules (4) and (5) shall affect the disclosure of names of persons in the certificate granted by the Board.]

(6) The applicant or his representative shall not be allowed to be present inside the preview theatre.

(7) Notwithstanding anything contained in sub-rules (4), (5) and (6), the Chairman may, by special or general order permit any member of the staff to be present at the preview to render such assistance as may be required.

(8) The Examining Committee shall examine the film having regard to the principles for guidance in certifying films specified in section 5-B(1) and the guidelines issued by Government under section 5-B(2).

(9) Immediately after the examination of the film each member of the Examining Committee attending the examination shall, before leaving the preview theatre record his opinion in writing in Form VIII set out in the Second Schedule spelling out in clear terms the reasons therefor and state whether he or she considers,–

(a) that the film is suitable for unrestricted public exhibition, i.e., fit for ‘U’ certificate; or

(b) that the film is suitable for unrestricted public exhibition but with an endorsement of caution that the question as to whether any child below the age of 12 years may be allowed to see the film should be considered by the parents or guardian of such child, i.e., fit for ‘UA’ certificate; or

(c) that the film is suitable for public exhibition restricted to adults, i.e., fit for ‘A’ certificate; or

(d) that the film is suitable for public exhibition restricted to members of any profession or any class of persons having regard to the nature, content and theme of the film, i.e., fit for ‘S’ certificate; or

(e) that the film is suitable for ‘U’ or ‘UA’ or ‘A’ or ‘S’ certificate, as the case may be, if a specified portion or portions be excised or modified therefrom; or

(f) that the film is not suitable for unrestricted or restricted public exhibition, i.e., that the film be refused a certificate, and if the Chairman is away from the regional centre where the film is examined, the form aforesaid shall be prepared in duplicate.

(10) The examining officer shall distribute copies of the synopsis with credit titles and songs among the members of the Committee and furnish them the form and such other documents as may be specified by the Board for making their recommendation.(11) After the screening of the film, the examining officer shall see that–

(a) the recommendation of every member of the Committee is recorded in unambiguous terms and each excision or modification is properly specified in clear terms with reason or reasons therefor;

(b) the same is duly signed by the members of the Committee; and

(c) where the report of any member of the Committee is incomplete, that fact is brought to the notice of the member concerned before he leaves the preview theatre.

(12) The examining officer shall within three working days send the recommendations of all the members of the Examining Committee to the Chairman and the Chairman is away from the centre where the film is examined, by registered post.(13) It shall be the personal responsibility of the examining officer to examine whether each and every guideline issued by Government has been followed and to bring any lapse or deviation to the notice of the Chairman.

(14) The quorum for the Examining Committee for a long film shall be four [of whom at least two persons shall be women.]

23. Certification. – On receipt of the record referred to in sub-rule (12) of rule 22, the Chairman shall, unless the provisions of sub-rule (1) of rule 24 are attracted, direct the Regional Officer concerned to take further action on behalf of the Board in conformity with the recommendation of the Examining Committee either unanimous or by majority:Provided that in case of a short film when the Committee is divided in its opinion, the Chairman shall either examine the film himself and take or direct the Regional Officer concerned to take further action on behalf of the Board to give effect to his decision.

24. Revising Committee. – (1) On receipt of the record referred to in rule 22, the Chairman may, of his own motion or on the request of the applicant, refer it to a Revising Committee constituted for the purpose.(2) The Revising Committee shall, subject to sub-rule (5), consist of a Chairman and not more than nine members, being members of the Board or members of any of the advisory panels, to be specified by the Chairman:[Provided that subject to the provisions of sub-rule (11), the Chairman shall give due representation to women in the Committee by nominating such number of women members as he thinks fit.](3) The Chairman or in his absence a member of the Board nominated by the Chairman shall preside at every meeting of the Revising Committee.(4) The Regional Officer of the Centre where the application was received under rule 21, may be invited to attend any meeting of a Revising Committee and participate in proceedings thereof but he shall have no right to vote thereat.(5) No member of the advisory panel who has been a member of the Examining Committee for any film shall be a member of the Revising Committee in respect of the same film.(6) The provisions of sub-rules (4) to (8) of rule 22 shall apply mutatis mutandis to the examination of films by the Revising Committee or the Board.(7) The Revising Committee shall examine the film at the applicant’s expense, on such date, at such place and at such time, as the Chairman may determine.(8) For the purpose of examination by a Revising Committee,–

(a) the applicant shall present the same clear runnable print of the film which was shown to the Examining Committee and he shall make no change whatsoever in it and he shall furnish the necessary declaration in writing in that behalf;

(b) the applicant shall be required to furnish fifteen typed or printed copies of the complete synopsis of the film together with the full credit titles and of the full text of songs, if any, with reel number, and where he has made a representation under sub-section (2) of section 4, fifteen copies thereof shall also be furnished:

Provided that where the film is in a language, other than English or any Indian language, the applicant shall furnish fifteen typed or printed copies of the translation in English or in Hindi of the synopsis together with full credit titles and of the full text of the songs, if any:Provided further that in the case of a film referred to in the preceding proviso, the Chairman may direct the applicant to furnish also fifteen typed or printed copies of the translation in English or Hindi of the full text of the dialogue, speeches or commentary:

Provided also that where the Chairman is satisfied that the applicant is not able to furnish the documents specified in this sub-rule for reasons beyond his control the Chairman may direct that the submission of such documents be dispensed with.

(9) Immediately after examination of the film, each member of the Revising Committee shall before leaving the preview theatre record his recommendations in writing in Form VIII set out in the Second Schedule spelling out in clear terms the reasons therefor and stating whether he or she considers–

(a) that the film is suitable for unrestricted public exhibition, i.e., fit for ‘U’ certificate; or

(b) that the film is suitable for unrestricted public exhibition but with an endorsement of caution that the question as to whether any child below the age of twelve years may be allowed to see the film should be considered by the parents or guardian of such child, i.e., fit for ‘UA’ certificate; or

(c) that the film is suitable for public exhibition restricted to adults, i.e., fit for ‘A’ certificate; or

(d) that the film is suitable for public exhibition restricted to members of any profession or any class of persons having regard to the nature, content and theme of the film, i.e., fit for ‘S’ certificate; or

(e) that the film is suitable for grant of ‘U’ or ‘UA’ or ‘A’ or ‘S’ certificate, as the case may be, if a specified portion or portions be excised or modified therefrom; or

(f) that the film is not suitable for unrestricted or restricted public exhibition, i.e., that the film be refused a certificate, and if the Chairman is away from the regional centre where the film is examined the form aforesaid shall be prepared in duplicate.

(10) The Presiding Officer of the Revising Committee shall, within three days, send the recommendations of all the members of the Revising Committee to the Chairman and where the Chairman is away from the centre where the film is examined, by registered post.

(11) The quorum of the Revising Committee shall be five members of whom at least two persons shall be women:Provided that the number of women members shall not be less than one-half of the total members of a Committee constituted under sub-rule (2).

(12) The decision of a Revising Committee shall be that of the majority of the members attending the examination of the film and, in the event of an equality of votes, the presiding officer shall have a second or casting vote:

Provided that where the Chairman disagrees with the decision of the majority of the Committee, the Board shall itself examine the film or cause the film to be examined again by another Revising Committee and that the decision of the Board or the second Revising Committee, as the case may be, shall be final.

25. On receipt of the orders of the Board under section 4 or section 5-A, the Regional Officer shall communicate the same to the applicant by registered post or in such other manner as in the circumstances of the case he deems fit and take such other steps in accordance with the said orders as he may deem necessary.

26. Issue of certificate subject to removal of portions of film. – (1) Where the applicant is informed by a Regional Officer that a film will not be granted ‘U’ or ‘UA’ or ‘A’ or ‘S’ certificate, as the case may be, unless a specified portion or portions thereof be removed from the film, the Regional Officer may issue such a certificate, if he is satisfied on a declaration made in writing (in Form IX set out in Second Schedule) by the applicant that the portion or portions objected to have been excised from the negative of the film and from all copies thereof, whether in the possession of the applicant or the laboratory where the film was processed, the distributor, the exhibitor or any other person and surrendered to him.

Explanation .-For the purpose of being satisfied that the portion or portions objected to have been excised from the negative of the film and from all copies thereof,–

(a) the Regional Officer or the Chairman may at the expense of the applicant examine the relevant portions of the negative of the film or copies thereof or cause it or them to be examined by one or more members of the advisory panel at such time and place as he may determine;

(b) the Regional Officer may require the applicant to produce a certificate from the owner or the manager of the laboratory where the film was processed, in such form as may be specified by the Board in this behalf in regard to the number of positive and negative copies of the film made in the laboratory.

(2) A certificate issued under sub-rule (1) shall be endorsed with a specification of the portion or portions required to be removed and a statement of the exact length of each part or parts removed and in the case of reduction of scene or sequences, it shall mention the length of the portion reduced and the length of the portion retained and shall bear a clearly visible triangle drawn at the left hand bottom corner of the certificate.(3) Where any film has been granted a certificate under this rule subject to the condition that a specified portion or portions thereof be removed from the film, any person who imports or otherwise acquires a copy of the film after the date of certificate aforesaid, shall surrender to the Board such portion or portions in any such copy.

27. The portion or portions of the film and of all copies surrendered to the Regional Officer as provided in rule 26 shall be preserved for a period of six months in the Board’s office and unless required by the Board shall thereafter be handed over to an authorised officer of the National Film Archive of India, Poona for study and research.

28. Deposit of a copy of certified film. – (1) In the case of a feature film after [the Chairman or] the Regional Officer has affixed his signature to the certificate granted under the foregoing rules and prior to the delivery or despatch of the certificate to the applicant, a copy in any gauge of the film as certified by the Board shall be deposited by the applicant with the Board at his own expense for the purpose of record.

Explanation .-A video copy of the film shall be treated as a copy of the film for the purpose of this sub-rule.(2) In the copy deposited under sub-rule (1) the negative side number (key numbers) shall be clearly printed.(3) The copy deposited under sub-rule (1) except where it is a video copy may, at the discretion of the Regional Officer concerned, be returned to the applicant on the expiry of one year from the date of first release of the film.(4) Before return of the copy of the film under sub-rule (3), the applicant shall deliver to the Board the full shooting script of the film together with dialogues:Provided that where the script as aforesaid is not delivered within one month after the expiry of one year from the first release of the film, the film shall be sent to the Curator of the National Film Archive of India, Poona, and the applicant shall thereafter collect the same at his own expense, only after obtaining a release order from the Board after delivering the script aforesaid.(5) No application for the return of the copy of film deposited with the Board in exchange, for the full shooting script under the proviso to sub-rule (4) shall be entertained after two years from the date of the first release of the film:Provided that the Chairman may, on being satisfied that there is sufficient cause for not making the application within the said period of two years, entertain the application before the expiry of a further period of one year.(6) In the case of films other than feature films, that is, shorts, documentaries, newsreels, advertisement films and such other films after the Regional Officer has affixed his signature to the certificate granted under the foregoing rules and prior to the delivery or despatch of the certificate to the applicant, the applicant shall deposit with the Board a copy of the film or in lieu of such deposit, the shooting script or a verbatim commentary or a tape record of the commentary:Provided that in the case of such films where the Chairman is of the opinion that the applicant for reasons beyond his control is unable to deposit a copy of the film or script or verbatim commentary or tape record of that commentary prior to the delivery or despatch of the certificate, he may direct that the certificate be delivered to the applicant on his giving an undertaking in writing that he shall deposit the said copy of the film or script or verbatim commentary or tape record of the commentary within such time not exceeding sixty days as may be specified by the Chairman.(7) All such copies of films, scripts or commentaries or tape records of commentaries deposited with the Board shall be accompanied by a declaration in Form X set out in the Second Schedule.29. Validity of certificate. – (1) A certificate granted by the Board under sub-section (1) of section 5-A in respect of a film shall be valid for a period of ten years from the date on which the certificate is granted.(2) Where in relation to the certificate of a film the period has expired, a fresh certificate in [Form IV, IV-A, V, V-A, VI, VI-A, VII or VIl-A] set out in the Second Schedule, as the case may be, may be issued on an application made in this behalf and the same shall be dealt with as if it were an original application:Provided that a Regional Officer may, with the prior approval of the Chairman, dispense with examination of the film, if the application is for the issue of certificate in the same form in which it was issued earlier.(3) An applicant for a fresh certificate shall be required to deposit a copy of shooting script or verbatim commentary or tape recorded commentary of the film only in cases where at the time of making application for the initial certificate the same was not deposited.30. Compliance with section 6-A. – (1) The manner of notification to the distributor or exhibitor for the purpose of section 6-A, shall be by delivery of a duplicate copy of the certificate (containing both Parts I and II thereof) with each copy of the certified film to be distributed or exhibited:[Provided that in the case of video film, a copy of the certificate showing the serial number, the category and other details should be pasted on every video cassette as well as on its case.](2) The provisions of sub-rule (1) shall apply in relation to an amendment of a certificate in respect of a film as it applied in relation to the certificate itself.(3) The duplicate copy of the certificate of a film referred to in sub-rule (1) shall accompany the film and be prominently exhibited in the theatre on all days on which the film is exhibited therein.31. Uncertification of a film under section 6.-Where in exercise of the powers conferred by section 6 of the Act, the Central Government by notification directs that a certified film shall be deemed to be an uncertified film in the whole of India, the applicant and any other person or persons to whom the rights in the film have passed, shall stop the exhibition of the film forthwith and surrender the certificate and all copies of the duplicate certificate granted in respect of the film to the Board within one month from the date of the notification:[Provided that the Chairman may, at the written request of the applicant or any other person concerned, extend the said period and the total period so extended shall not exceed six months.]32. Re-examination of certified films. – (1) Where in respect of a film, which has been certified for public exhibition, any complaint is received by the Board, the same shall be forwarded to the Central Government.(2) The Central Government may, if it considers it necessary so to do, direct the Chairman to re-examine any film (in respect of which a complaint has been received by it directly or through the Board) in such manner and with such assistance as may be specified in the direction.(3) The Chairman may, for the purpose of re-examination aforesaid, require by written notice the person who made the application for certification of the film or the person to whom the rights of ownership or distribution in the film have passed, to arrange at his expense to deliver a print of the certified film to any specified Regional Officer within such time as may be specified in the notice for the purpose of re-examination.(4) The place, date and time of such re-examination shall be determined by the Chairman.(5) The Chairman shall forward his opinion together with the print of the film in relation to which a certificate was issued earlier to the Central Government who may after such enquiry as it deems fit, pass such orders thereon in exercise of the revisional powers under section 6.(6) The provisions of this rule shall apply only in cases where the revisional powers are exercisable by the Central Government under section 6.33. Alteration of film after issue of certificate. – (1) When a film is altered by excision, addition, colouring or otherwise after it has been certified under these rules, it shall not be exhibited unless the portion or portions excised, added, coloured or otherwise altered, have been reported to the Board in Form III in the Second Schedule and the Board has endorsed the particulars of the alteration or alterations on the certificate.Explanation I.-Reasonable wear and tear in the normal course of handling or projecting a film shall not be deemed to be an alteration of the film within the meaning of this sub-rule.Explanation II.-Any addition, deletion, alteration or replacement of background music in a film or (unless the Chairman by general or special order otherwise directs), a mere change in gauge shall not be deemed to be an alteration of the film within the meaning of this sub-rule.(2) For the purpose of exercising its powers under sub-rule (1), the Regional Officer shall appoint an Examining Committee to examine at the expense of the applicant, the reel or reels of the film in which the portion or portions are altered in such manner and with such assistance as he may deem fit and where the Examining Committee considered it necessary so to do, it shall re-examine the entire film:Provided that where a film is altered by excision or by the change of a coloured film into black and white version only it shall not ordinarily be necessary to appoint an Examining Committee unless the Regional Officer in any case otherwise directs.(3) The Examining Committee appointed under sub-rule (2) shall consist of [one member] of the Advisory Panel and an examining officer:Provided that where the examining officer is unavoidably absent at the examination of the film or any reel thereof, the Examining Committee shall consist of two members of the Advisory Panel.(4) Pending examination of the altered film under this rule, the applicant shall not exhibit the film incorporating the proposed alteration.(5) Where the film or any portion thereof as the case may be, is re-examined under this rule, the Chairman shall unless for reasons to be recorded in writing, he declines permission for the alteration, make suitable endorsement in the certificate granted in relation to the film.34. Amendment of certificate granted by the Board after notification under section 6.-When a notification is published under the powers conferred by section 6 of the Act declaring that a film in respect of which a ‘U’ certificate or a ‘UA’ certificate or an ‘S’ certificate has been granted shall be deemed to be a film in respect of which an ‘A’ certificate has been granted, the person to whom the certificate has been granted or the person to whom the rights in the film have passed as the case may be, shall surrender within one month from the date of issue of the order the original certificate and all the duplicate copies thereof to the Board for the issue of a fresh certificate of the new category.35. Certificates. – (1) A certificate authorising the public exhibition of a film shall be in one of the [Forms IV, IV-A, V, V-A, VI, VI-A, VII or VIl-A set out in the Second Schedule according as the film is fit for ‘U’ or ‘UA’ or ‘A’ or ‘S’ or ‘U’ or ‘V/A’ or ‘V/UA’ or ‘V/S’]certificate, as the case may be.(2) The certificate shall be signed for and on behalf of the Board by the Chairman or by a Regional Officer for the Chairman.[(3) The prescribed mark of the Board shall be a film copy of the certificate, that is, a trailer certificate, which shall be affixed to the film and always exhibited with it. The trailer certificate shall be for such duration as one can read it on the screen:Provided that Part I of the certificate shall be shown for a minimum duration of 10 seconds:Provided further that if there are no excisions or modifications ordered by the Board, Part II of the certificate need not be shown.][36. Fees. – (1) A fee shall be charged for the examination of every film at the rates laid down in the following Table and the same shall be paid either in cash or remitted by postal order or bank draft to the regional centre of the Board where the film is to be examined.

Table of Fees

(i) Celluloid Films

Length in meters
(up to and inclusive of)
Examination Fees
(Other than Predominantly Educational films)
(in rupees)
Examination Fees
(Predominantly Educational films)
(in rupees)
Screening Fees
(in rupees)
(1) (2) (3) (4)
300 2,000 400 200
600 3,950 800 400
900 5,950 1,200 600
1,200 7,950 1,600 800
1,500 9,950 2,000 1,000
1,800 11,900 2,400 1,200
2,100 13,900 2,800 1,400
2,400 15,900 3,200 1,600
2,700 17,850 3,550 1,800
3,000 19,850 3,950 2,000
3,300 21,850 4,350 2,000
3,600 23,850 4,750 2,000
3,900 25,800 5,150 2,000
4,200 27,750 5,550 2,000
4,500 29,800 5,950 2,000
4,800 31,750 6,350 2,000
5,100 33,750 6,750 2,000
5,400 35,750 7,150 2,000
5,700 37,750 7,550 2,000
6,000 39,650 7,950 2,000

(ii) Other than Celluloid Films

Duration in minutes
(up to and inclusive of)
Examination Fees
(Other than Predominantly Educational films)
(in rupees)
Examination Fees
(Predominantly Educational films)
(in rupees)
Screening Fees
(in rupees)
(1) (2) (3) (4)
10 1,900 550 150
20 3,650 1,100 300
30 5,950 1,200 400
40 7,350 1,450 550
50 9,150 1,850 700
60 10,900 2,200 850
70 12,700 2,550 950
80 14,700 2,950 1,050
90 17,650 3,300 1,250
100 18,250 3,650 1,400
110 20,050 4,000 1,550
120 21,850 4,350 1,650
130 23,800 4,750 1,800
140 23,800 5,100 1,950
150 27,200 5,450 2,100
160 29,150 5,850 2,200
170 30,950 6,200 2,350
180 32,750 6,550 2,500
190 34,750 6,950 2,650
200 36,300 7,250 2,800

(2) Fee for the examination of a film for certifying alterations under rule 33 shall be calculated only with reference to the reel or reels (or cassette or cassettes), in which the portion or portions excised, added, colored or otherwise altered occur and for the purposes the rate specified in the table aforesaid for original certification shall be applicable:Provided that where the alteration is by excision, the fee chargeable shall be at the rate of one hundred and fifty rupees per each endorsement.(3) A fee of one hundred and fifty rupees shall be paid for a duplicate copy of the certificate.(4) In the event of an application for certification being withdrawn before the film is examined, the Board may on an application made to it in that behalf, refund to the applicant the amount of fee paid towards the examination of the film after deducting twenty-five per cent. of the amount so paid.(5) In the event of an applicant failing to present a runnable print before the Examination Committee or the Revising Committee on the day and time and at the place fixed for such examination, an additional fee of twenty-five per cent. of the fee payable for examination of the film under this Table shall be paid before another place, date and time for the examination of the film is fixed.(6) If, by mistake, miscalculation or such other reason, the applicant pays towards fee for the examination of any film any amount in excess of the amount of fee payable under these rules, the Board may, on an application made in that behalf, within a period of one year from the date of certification of the film, refund to the applicant the amount so paid in excess.(7) Any person who applies to the Board for information regarding the certification or any other particular in respect of a film shall along with the application, pay a search fee of thirty-five rupees per each title of the film.]


38. Advertisement of films.
 – Any person advertising a film granted ‘UA’, ‘A’ or ‘S’ certificate or the exhibition of such film by means of insertions in newspapers, hoardings, posters, handbills or trailers shall, after the date of its certification, indicate in such insertions in newspapers, hoardings, posters, handbills or trailers that the film has been certified for such public exhibition. [such advertisement shall indicate only the certified title of a film.]37. Power of entry. – The Chairman or any member of the Board or an advisory panel or a Regional Officer or any other officer or member of the staff of the Board or any officer of the Central Government authorised in writing by the Chairman or members or any officer or member of the staff of the Appellate Tribunal or any officer of the Central Government authorised in writing by the Secretary to the Government of India in the Ministry of Information and Broadcasting in this behalf, may enter any place licensed under the law in force relating to cinemas, in the discharge of his duties under the Act or these rules and thereupon the owner or the manager of such place shall provide him with a seat of the highest rate or the next lower class to view the film without charging the admission fee and entertainment tax.

39. Maintenance of register. – (1) The Board shall [maintain] a register in which these shall be entered,–

(a) the name of every film examined under the Act;

(b) the name of the person applying for certificate;

(c) the name of the person or company producing or releasing the film;

(d) the name of the country in which the film was originally produced;

(e) the name of the place where the film was examined;

(f) the date of the examination;

(g) the names of the persons who examined the film;

(h) the result of the examination and of any further proceedings thereon;

(i) the number and date of the certificate issued, if any, together with a copy of any endorsement made thereon.

(2) For the purpose of enabling the Board to maintain such a register, the Regional Officers concerned shall each maintain similar registers in respect of applications for certification made to them and send to the Board a duplicate copy of every entry made in it, as soon as may be, after it has been made.(3) A copy of the entries in the register maintained by the Board made during any month shall be sent to all the Regional Officers during the next following month.

40. Certain films to continue to remain uncertified films. – If a film has been declared by a notification issued before the 15th January, 1951 by any State Government to be an uncertified film in any part or parts of the State concerned and if the said notification has not ceased to be in force by virtue of the proviso to sub-rule (2) of rule 35 of the Cinematograph (Censorship) Rules, 1951, the film shall not be publicly exhibited unless it is certified for public exhibition in accordance with the provisions of these rules:Provided that before certifying any such film for public exhibition the Board shall obtain the prior approval of the Central Government.

41. Time-limit in relation to certification of films. – (1) After an application under rule 21 for the certification of a film, complete in all respects (including the proof of payment of fees) is received, the Board shall scrutinise the application within seven days from the receipt thereof.(2) On receiving an intimation from the applicant that a clear runnable print of the film is available for examination, the Board shall, within 15 days therefrom refer the film for examination to an Examining Committee.(3) The films may be referred to the Examining Committee in the order in which the applications are received:Provided that the Regional Officer may on receipt of a written request from any applicant, if satisfied that there are grounds for an early examination, alter the order of examination of the film after recording the reasons in writing.(4)(a) In cases where the Examining Committee, after examination of the film, considered that a scrutiny of the shooting script is necessary or the authenticity of the incidents depicted in a film of historical, mythological, biographical or legendary nature is to be verified, a provisional report to that effect shall be submitted by the Regional Officer to the Chairman within a maximum of three working days after such examination.

(b) A written communication shall be sent to the applicant within a maximum of three working days following the receipt of the Chairman’s orders on the provisional report referred to in clause (a) and the applicant shall submit the script or the authentic sources on which the subject of his film is based within ten days from the date of receipt of such communication.

(c) In cases where the members of the Examining Committee after the examination of the film submit to the Chairman a provisional report indicating that expert opinion on subjects depicted in the film such as subjects relating to defence or foreign relations or any particular religion or law or medicine or any other subject, should be sought before the final report is submitted, the Chairman may after taking into consideration the circumstances of the case specify a time limit for obtaining the expert opinion and for the submission of the final report of the Examining Committee thereafter.

(d) In other cases, the script submitted by the applicant or the authentic sources furnished by him shall be scrutinised by the examining officer and the final report of the Examining Committee shall be forwarded by the examining officer of the Chairman within ten days from the date of receipt of the script or the authentic sources, as the case may be.

(5)(a) On receipt of the orders of the Board on the recommendations of the Examining Committee, in cases where sub-section (2) of section 4 is applicable, the communication to the applicant shall be issued within three days.

(b) The applicant shall submit his reply within fourteen days of the receipt of the communication.

(6) In cases where the film is not referred to a Revising Committee, certificate shall be issued or decision communicated within seven days.(7)(a) In cases where a film is to be referred to a Revising Committee, a Revising Committee shall be constituted within twenty days from the receipt of the necessary documents from the applicant.

(b) The provisions of sub-rules (3) to (6) shall apply mutatis mutandis to the examination of films by the Revising Committee.

(c) When a film is referred to another Revising Committee or to the Board in terms of proviso to sub-rule (12) of rule 24, the time limit will be further extended on the lines of (a) and (b) of this sub-rule.

(8) The applicant shall surrender the cuts, if any, and the affected reels together with full particulars thereof, within a period of fourteen days from the date of receipt of the final orders of the Board under section 4:Provided that where the applicant applies to the Board that he intends to appeal against the orders of the Board, the Board may extend the period specified above for surrender of the cuts by such period as it thinks fit, but in any case not beyond fourteen days from the date of disposal of the appeal or from the date of expiration of the period for filing the appeal in cases where no appeal is filed.(9) The cuts and the affected reels shall be examined by the Regional Officer within ten days of the submission of the same.(10) If the cuts are found to be adequate on the scrutiny of the relevant reels and all particulars necessary for the presentation of the certificate are fully furnished, certificate shall be prepared and issued within five days of the deposit of a copy of the film or script, as the case may be, as required under these rules.(11) If, however, the cuts are found to be inadequate on a scrutiny of the relevant reels, the Regional Officer shall record the same on the file and send within two days a further communication to the applicant for compliance with the orders of the Board.(12) The applicant shall submit further cut to the Regional Officer within three days from the date of receipt of the communication.(13) The Regional Officer shall again verify further cuts and the reels within five days of the receipt of the same and if the cuts are found to be adequate a certificate shall be issued.(14) The Chairman may, for reasons to be recorded in writing, relax the time-limits prescribed by this rule for the performance of any act if he is satisfied that it is necessary so to do to avoid any undue hardship.Explanation .-In calculating the periods specified in this rule working days alone shall be taken into account and Sundays and other holidays shall be excluded.

42. Preservation of records of certification of films. – (1) Records of certification of feature/long film shall be preserved by the Board for a minimum period of twelve years.(2) Records of certification of all short films shall be preserved by the Board for a minimum period of two years:Provided that in the case of short films if thereby cuts made by the Board or alterations made therein under rule 33 or if complaints have been received against the film, records of certification of the film shall be preserved for a minimum period of twelve years.

43. Terms and conditions of service of the Chairman and members of the Appellate Tribunal. – (1) The Chairman and members of the Appellate Tribunal shall hold office during the pleasure of the Central Government.(2) Subject to the provisions of sub-rule (1), the Chairman of the Appellate Tribunal shall hold office for a period of three years and shall continue to hold office until his successor is appointed.(3) Subject to the provisions of sub-rule (1), every other member of the Appellate Tribunal shall hold office for a period not exceeding three years.(4) A retiring Chairman or a member of the Appellate Tribunal whose term of office has expired by efflux of time shall be eligible for re-appointment.(5) Notwithstanding anything contained in the foregoing sub-rules, when the Chairman of the Appellate Tribunal is unable to discharge his functions owing to absence, illness or any other cause, the Central Government may appoint another person to discharge the functions of the Chairman until the Chairman resumes his duties.(6) The Central Government may, after consultation with the Chairman of the Appellate Tribunal, appoint any person whom it thinks fit to be a member of the Appellate Tribunal:Provided that the Central Government may, for reasons to be recorded in writing, dispense with such consultation.(7) A casual vacancy in the membership of the Appellate Tribunal caused by the resignation, death or removal of any member or otherwise shall be filled by fresh appointment and the person so appointed shall hold office for a period not exceeding three years.(8) The Central Government may remove from office any member of the Appellate Tribunal before the expiration of his term of office:Provided that a member appointed to the Appellate Tribunal after consultation with the Chairman of the Appellate Tribunal shall not be so removed except on the recommendation of or after consultation with the Chairman of the Appellate Tribunal.(9) For the purpose of enabling the Appellate Tribunal to perform its functions under the Act, the Central Government may appoint a Secretary to the Appellate Tribunal and such other officers for the Appellate Tribunal as may be considered necessary:Provided that the Central Government may delegate to the Chairman of the Appellate Tribunal subject to such conditions and limitations, if any, as may be specified by it, the power of appointment conferred on it under this sub-rule, other than the powers of appointment in relation to the post of Secretary to the Appellate Tribunal:Provided further that the Chairman of the Appellate Tribunal may grant leave to or suspend or remove from service any officer appointed by him under the powers delegated to him under this sub-rule.(10) The Secretary to the Tribunal and other officers appointed under sub-rule (9) shall perform such duties as may be assigned to them by these rules or by the Chairman of the Appellate Tribunal.(11) Notwithstanding anything contained in the foregoing sub-rules, the Chairman of the Appellate Tribunal may, for the purpose of enabling the Tribunal to discharge its functions under the Act, make appointments to posts other than Group A posts and may assign to the persons holding such posts, duties as he may deem fit.(12) The Chairman of the Appellate Tribunal, if he is a paid full time officer, shall receive such pay and allowances as are admissible to a serving Judge of a High Court. He shall be entitled to all facilities and concessions not less favourable than those admissible to a serving Judge of a High Court:Provided that in the case of a retired Judge of a High Court re-employed as Chairman of the Appellate Tribunal, the pay and other terms and conditions of service shall be the same as are applicable to re-employed Judges of a High Courts under the orders of the Central Government.(13) Every honorary member (including the Chairman where he does not receive any salary) may,–

(a) if he is an out-station member,

(i) travel by air or by train as admissible according to the orders issued by the Central Government from time to time in respect of journeys undertaken by him for the performance of his duties as such member;

(ii) be paid a consultancy fee for attending the preview of a film or meeting of the Appellate Tribunal at the rate of Rs. 100 for each day of such preview or meeting; and

(iii) be paid daily allowance at the rate of Rs. 50 per day for each day preceding the meeting and that following the meeting, if the member actually stays at the place of the meeting;

(b) if he is a local member, be paid a consultancy fee for attending the preview of a film or meeting of the Appellate Tribunal at the rate of Rs. 75 per day for each day of such preview or meeting:

Provided that daily allowance will not be admissible in addition for the day or days for which the consultancy fee is paid.

44. Fees for appeal to the Appellate Tribunal. – (1) Subject to sub-rule (2) below, fees at the rates laid down in the following Table shall be payable along with every appeal petition preferred under sub-section (2) of section 5-C and the same shall be paid either in cash or remitted by postal order or bank draft to the Secretary to the Tribunal:

Table of Fees

(i) Long film : Rs. 750 irrespective of length and gauge of film;

(ii) Short film : Rs. 100 irrespective of length and gauge of film.

(2) The Chairman of the Appellate Tribunal may at his discretion and for reasons to be recorded in writing, waive the payment of fee in any particular case.(3) In the event of an appeal being withdrawn before the film is previewed, the Chairman of the Appellate Tribunal may, on application made to it in that behalf, refund to the appellant the amount of fee paid towards appeal after deducting 25 per cent of the amount so paid.(4) In the event of an appellant failing to present a runnable print before the Appellate Tribunal on the day and time and at the place fixed for preview, an additional fee of 25 per cent of the fee payable for consideration of appeal under the Table in sub-rule (1) shall be paid before another date and time for the preview of the film is fixed.(5) If, by mistake, miscalculation or such other reason, the applicant pays towards fee for the consideration of appeal any amount in excess of the amount of fee payable under these rules, the Chairman of the Appellate Tribunal may, on an application made in that behalf, within a period of one year from the date the appeal has been decided, refund to the applicant the amount so paid in excess.

First Schedule

(See rule 21)

Application for Certification of Films Imported into or Produced in the States/ Union Territories Mentioned in column 3 shall be presented at the Regional Office in column 2:

Sl. No. Regional Office situated at Films imported into or produced in
(1) (2) (3)
1. Bangalore State of Karnataka.
2. Bombay States of Gujarat, Madhya Pradesh and Maharashtra and the Union Territories of Dadra and Nagar Haveli and Goa, Daman and Diu.
3. Calcutta [States of Bihar, West Bengal and the Union Territories of Andaman and NicobarIsland].
4. Cuttack State of Orissa.
5. Delhi States of Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh and the Union territories of Chandigarh and Delhi.
6. Guwahati States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland,Sikkim and Tripura.
7. Hyderabad State of Andhra Pradesh.
8. Madras States of Tamil Nadu and the Union Territory of Pondicherry.
9. Trivandrum State of Kerala and the Union Territory of Lakshadweep.

Note. – [(1)] The dubbed version of a film, in whatever Indian language, will be submitted for certification only to the Regional Office where the original version of the film was certified in the first instance.[(2)] The following two norms will define the “place of production” of films :-

(i) The location of the producer’s association/council/chamber, etc., with whom the film-title was registered before starting production of film concerned. In the case of registration of the title with more than one association/council/chamber, etc., only the earlier registration to be considered; and

(ii) The location of the Head Office/Regional Office/production office of the film [producing] company.

Second Schedule

Form I

Form of Application for Certification for Public Exhibition of a Film Produced in India

[See sub-rule (1) of rule 21]

No. and date of application (to be entered by Board’s office)

To

The Central Board of Film Certification through the Regional Officer at……………………………

Application for certification for public exhibition of a film produced in India at…………………

(1)(a) Name of the film

(b) Language of the film

(c) Length of the film in ft. …………..metre

(d) Number of reels

(e) Gauge of the film

(f) Type of the film, i.e. whether it is 2-D, 3-D, cinemascope, vistavision, etc.

(g) Whether the film is silent or a talkie

(h) Colour of the film

(i) Name and address of the producer

(j) Name of the director

(2) State whether the film is a newsreel/documentary/scientific/educational/feature/advertisement film.(2-A) Specify the certificate requested ‘U’, ‘UA’, ‘A’ or ‘S’(3) State separately the number of negative and positive prints of the film.

(a) Produced (negative……………………………. Positive …………………)

(b) In the applicant’s possession (negative …………………………Positive ……………..)

(c) Name and address of the processing laboratory.

(4)(a) Whether the present film is a dubbed version or a re-make of any other film? If so, state the particulars along with full details of certificates issued to that film.

(b) Whether any pre-censorship advice was obtained and if so, the details thereof.

(c) Whether permission for any shooting abroad was obtained and, if so, the details thereof.

(d) Whether the film contains any dialogue/commentary in any language other than the language of the film and, if so, specify the language and the reels in which they occur.

(5) Has any previous application been made to certify this film as suitable for public exhibition in India? If so,

(a) Where and to whom was it made

(b) What was the result of the application ?

(i) A ‘U’/’UA’/An ‘A’/’S’ certificate No……. dated………..was granted subject to the following cuts…………

(ii) Certificate was refused.

(6) Has the exhibition of this film been at any time suspended or the film declared uncertified by the Central or any State Government? State particulars:(7) Does the film contain any dialogue, Song, poem, speech or commentary in any language other than English, or an Indian language?If so, specify that reel or reels in which the dialogue, song, poem, speech or commentary occurs and the language or languages used.(8) Amount of fee accompanying the application on account of the fee prescribed in rule 36.

(i) Receipt No………………………………………….. dated ………………………………………………….

(ii) Bank draft No……………….. dated …………………………. on………………………… Bank.

(iii) Postal order No……………………………. dated……………. on ………………………… post office.

[(8-A) Whether any animal has been used in shooting of the film? If so, whether declaration specified in clause (bb) of sub-rule (3) of rule 21 has been filed ?](9) Name, address, and telephone number, if any of the applicant Telephone No.:………………………………………………………………………………………………………………………………………………………………………..………………………………………………………………………………………………………………………………………………………………………..………………………………………………………………………………………………………………………………………………………………………..(10) I declare that the print of the film is ready for examination by the Board and the statements recorded above are true in every particular.Date ……………..

…………………………..

Signature of applicant

[Form I-A

Form of Application for Certification for Public Exhibition of A [Film on Video Tape or Compact Video Disc] Produced in India

[See sub-rule (1) of rule 21]

No. and date of application (to be entered by Board’s office)

To

The Central Board of Film Certification through the Regional Officer at…………………

Application for certification for public exhibition of a video film produced in India at…………….

(1) (a) Name of the [film on video tape or compact video disc]

(b) Language of the [film on video tape or compact video disc]

(c) Running time

(d) Number of cassettes

(e) Any other particulars of the video conversion

(f) Type of the film, i.e., whether it is 2-D, 3-D, cinemascope, vistavision, etc.

(g) Whether the film is silent or a talkie

(h) Colour of the film

(i) Name and address of the producer

(j) Name of the director

(2) State whether the [film on video tape or compact video disc] newsreel/documentary/scientific/educational/feature/advertisement video film.(2-A) Specify the certificate requested: ‘U’,’UA’,’A’ or ‘S’.(3) State separately the number of negative and positive prints of the [film on video tape or compact video disc].

(a) Produced (negative……………… positive …………………)

(b) In the applicant’s possession (negative ……………….positive ……………….)

(c) Name and address of the laboratory/company where copies were made.

(4)(a) Whether the [film on video tape or compact video disc] for which the application has been made is a replica/exact copy of a cinematograph film on celluloid in respect of which a certificate has already been granted by the Central Board of Film Certification? Also state particulars of the film certified.

(b) Whether the [film on video tape or compact video disc] is a modified version of a certified cinematograph film on celluloid containing additions, deletions/or other alterations (details of modifications may be provided).

(c) Whether the application being made is in respect of an original [film on video tape or compact video disc] and not a copy of an already certified cinematograph film on celluloid.

(d) Whether the present [film on video tape or compact video disc] is a dubbed version or remake of any other [film on video tape or compact video disc]? If so, state the particulars along with full details of certificates issued to that [film or video tape or compact video disc].

(e) Whether any pre-censorship advice was obtained and if so, the details thereof.

(f) Whether permission for any shooting abroad was obtained and, if so, the details thereof.

(g) Whether the [film on video tape or compact video disc] contains any dialogue/commentary in any language other than the language of the [film on video tape or compact video disk] and, if so, specify the language and the cassette in which they occur.

(5) Has any previous application been made to certify this [film on video tape or compact video disc] as suitable for public exhibition in India ? If so,-

(a) Where and to whom was it made

(b) What was the result of the application

(i) A ‘U’/’UA’/An ‘A’/’S’ certificate No…………. dated………………… was granted subject to the following cuts ………..

(ii) Certificate was refused.

(6) Has the exhibition of this [film on video tape or compact video disc]/film been at anytime suspended or the [film on video tape or compact video disc]/film declared uncertified by the Central or any State Government? State particulars:(7) Does the [film on video tape or compact video disc] contain any dialogue, songs, poem, speech or commentary in any language other than English or an Indian language ?If so, specify that cassette or cassettes in which the dialogue, song, poem, speech or commentary occurs and the language used.(8) Amount of fee accompanying the application on account of the fee prescribed in rule 36.

(i) Receipt No…………….dated ……………………

(ii) Bank draft No…………….dated……………. on……………………Bank.

(iii) Postal order No……………..dated ……………..on………………….Post Office.

[(8-A) Whether any animal has been used in shooting of the film? If so, whether declaration specified in clause (bb) of sub-rule (3) of rule 21 has been filed ?](9) Name, address and telephone number, if any, of the applicant. Telephone No.:(10) I declare that the [film on video tape or compact video disc] is ready for examination by the Board and the statements recorded above are true in every particular. I also declare that I own the rights of the [film on video tape of compact video disc] in question. I further declare that I have the right to use in the video film the additional material in the feature film in the form of trailers, advertisement shorts, documentary films, etc.

………………………………..

Signature of applicant

Date………………………………………….

Form II

Form of Application for Certification for Public Exhibition of a Film imported into India

(See sub-rule (1) of rule 21)

No. and date of application (to be entered by Board’s office)

To

The Central Board of Film Certification through the Regional Officer at Bombay/Calcutta/Madras.

Application for certification for public exhibition of a film first imported into India at………………..

1. (a) Name of the film

(b) Language of the film

(c) Length of the film in ft…………………metres. Length of the film as shown in the CCP and/or import licence.

Have any cuts been made voluntarily by the applicant and if so give details.

(d) Number of reels

(e) Gauge of the film

(f) Type of the film, i.e., whether it is 2-D, 3-D, cinemascope, vistavision, etc.

(g) Whether the film is silent or a talkie

(h) Colour of the film

(i) Name of the producer

(j) Name of the director

(k) Country in which produced

2. State whether the film is a newsreel/documentary/scientific/educational/feature/advertisement film.3. State separately, the number of negative and positive prints of the film:

(a) Imported by the applicant (negative ………….. positive ………………)

(b) In the applicants possession (negative ………………positive…………………)

4. In what other language/languages, if any, has this been produced or dubbed ?Where the title is not the same in each language state the title of each version in which it has been produced or dubbed.5. Has any previous application been made to certify this film (under its present or any other title) in,-

(a) India:

(b) United States of America:

(c) United Kingdom:

(f) Any other country:

If so,

(i) Where and to whom was it made?

(ii) What was the result of the application, i.e.

(i) A ‘U’/’UA’/An ‘A’/’S’ certificate No. …………….. dated ………………. was granted subject to the following cuts……………….(ii) Certificate was refused.In the case of film made in the United States of America, state the rating of his film according to (a) the national group and (b) the legion of decency.

(a)………………………(b)………………..

6. Has exhibition of this film been at any time suspended or the film declared uncertified by the Central or any State Government? State particulars:7. Does the film contain any dialogue, songs, poem, speech or commentary in any language other than English, or any Indian language?If so, specify that reel or reels in which the dialogue, song, poem, speech or commentary occurs and the language or languages used.8. Amount of fees accompanying the application on account of the fee prescribed in rule 36.

(i) Receipt No. ……………… dated ………………….

(ii) Bank draft No……………… dated ……………….on……………….bank

(iii) Postal order no………………. dated ………………on…………………….post office.

9. Name, address and telephone number, if any, of the applicant.……………………………………………………………………………………………………………………………………………………………………………………………………………..……………………………………………………………………………………………………………………………………………………………………………………………………………..……………………………………………………………………………………………………………………………………………………………………………………………………………..10. (a) Name, address and telephone, if any, of the importer of the film …………………

(b) Number and date of the import licence ………………….

(c) Date of clearance through the customs ………………….

11. Has the film been produced by or in collaboration with South African or Rhodesian nationals wholly or in part in South Africa, South West Africa or Rhodesia or is the film owned wholly, or in part, by South African or Rhodesian nationals? If so, give details.[11-A. Whether any animal has been used in shooting of the film? If so, whether declaration specified in clause (bb) of sub-rule (3) of rule 21 has been filed ?]12. I declare that the print of the film is ready for examination by the Board and the statements above recorded are true in every particular.

………………………………

Signature of applicant

Date ……………………………………..

[Form II-A]

Form of Application for Certification for Public Exhibition of A [Film on Video Tape or Compact Video Disc] imported into India

(See sub-rule (1) of rule 21)

No. and date of application (to be entered by Board’s office)

To

The Central Board of Film Certification through the Regional Officer at ………..

Application for certification for public exhibition of a [film on video tape or compact video disc] first imported into India at …………………………..

1. (a) Name of the [film on video tape or compact video disc]

(b) Language of the [film on video tape or compact video disc]

(c) Running time of the [film on video tape or compact video disc]……………. metre.

Running time of the [film on video tape or compact video disc] as shown in the CCP and/or import licence. Have any cuts been made voluntarily by the applicant and if so give details.

(d) Number of cassettes.

(e) Any other particulars of the video conversion.

(f) Type of the film, i.e., whether it is 2-D, 3-D, cinemascope, vistavision, etc.

(g) Whether the film is silent or a talkie

(h) Colour of the film.

(i) Name of the producer.

(j) Name of the director.

(k) Country in which produced.

2. State whether the [film on video tape or compact video disc] is a newsreel/documentary/scientific/educational/feature/advertisement video film.3. State separately, the number of negative and positive prints of the [film on video tape or compact video disc]:

(a) Imported by the applicant (negative ………………positive………………..)

(b) In the applicant’s possession (negative ………………positive …………………)

4. (a) Whether the [film on video tape or compact video disc] for which the application has been made is a replica/exact copy of a cinematograph film on celluloid in respect of which a certificate has already been granted by the Central Board of Film Certification? Also state particulars of the film certified.

(b) Whether the [film on video tape or compact video disc] is a modified version of a certified cinema to graph film on celluloid, containing additions, deletions/other alterations (details of modifications may be provided).

(c) Whether the application being made is in respect of an original [film on video tape or compact video disc] and not a copy of an already certified cinematograph film on celluloid.

(d) In what other language/languages, if any, has this been produced or dubbed ?

Where the title is not the same in each language state the title of each version in which it has been produced or dubbed.5. Has any previous application been made to certify this [film on video tape or compact video disc]/film (under its present or any other title) in

(a) India:

(b) United States of America:

(c) United Kingdom:

(d) Any other country:

If so,

(i) Where and to whom was it made?

(ii) What was the result of the application, i.e.

(i) A ‘U’/’UA’/An ‘A’/’S’ certificate No. …………….. dated ……………… was granted subject to the following cuts………………

(ii) Certificate was refused.

In the case of film made in the United States of America, state the rating of this film according to (a) the national groups and (b) the legion of decency.

(a) …………………….(b)…………………………………….

6. Has exhibition of this [film on video tape or compact video disc] been at any time suspended or the film declared uncertified by the Central or any State Government? State particulars:7. Does the [film on video tape or compact video disc] contain any dialogue, song, poem, speech or commentary in any language other than English, or any Indian language ?If so, specify the cassette or cassettes in which the dialogue, song, poem, speech or commentary occurs and the language or languages used.8. Amount of fees accompanying the application on account of the fee prescribed in Rule 36.

(i) Receipt No……………… dated ………………….

(ii) Bank draft No……………… dated ……………..on…………………..bank

(iii) Postal order No……………….dated ………………….on……………..post office.

9. Name, address and telephone number, if any, of the applicant.

……………………………………………..

……………………………………………..

……………………………………………..

10. (a) Name, address and telephone number, if any, of the importer of the [film/films on video tape or compact video disc] ………………

(b) Number and date of the import licence …………………………

(c) Date of clearance through the Customs …………………………

11. Has the [films/films on video tape or compact video disc] been produced by or in collaboration with South African or Rhodesian nationals wholly or in part in South Africa, South West Africa or Rhodesia or is the film owned wholly, or in part, by South African or Rhodesian nationals? If so, give details.[11-A. Whether any animal has been used in shooting of the film? If so, whether declaration specified in clause (bb) of sub-rule (3) of rule 21 has been filed ?]12. I declare that the video film is ready for examination by the Board and that the statements above recorded are true in every particular. I also declare that I own the video rights of the film in question. If further declare that I have the right to use in the video film the additional material in the feature film in the form of trailers, advertisement shorts, documentary films, etc.

……………………………..

Signature of applicant

Date………………………………

Form III

(See rule 33)

(To be submitted in duplicate)

Report under rule 33 of the Cinematograph (Certification) Rules, 1983, Regarding an Alteration or Alterations in a Certified Film

1. Name of the applicant:2. Name of the film:3. Certificate No……………dated……………..4. Particulars of alterations:Reel No……….Scene No……….Description of the scene/dialogue/song length.(Specify the exact alteration or alterations, length and the number of the reel or reels in which the alteration or alterations occurs or occur).[In the case of [film on video tape or compact video disc] instead of length and number of reels, duration in minutes and number of cassettes may be given.]To

The Chairman, Central Board of Film Certification through the Regional Officer at Bombay/Calcutta/Madras.*

I declare that the above particulars are true in every respect and are a full description of the alteration or alterations made in the film after its certification.Date………………………………………Address………………………………

……………………………………

Signature of applicant

[FORM – IV]

[See rule 35 (1)]

Government of India

Central Board of Film Certification this Certificate is Valid for Theatrical release only

Part I

[See rule 35(1)]

Government Of India

Central Board of Film Certification this Certificate is Valid for Theatrical release only

Part I

Certificate No. ………………… Dated …………… Category “U” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/ Revising Committee/Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for unrestricted public exhibition subject to excisions and modifications listed in Part II on the reverse:-1.2.3.4.Unrestricted Public ExhibitionFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form IV-A

[See rule 35 (1)]

Government of India

Central Board of Film Certification

This Certificate is Valid for [File On Video Tape or Compact Video Disc] Only

Part I

Certificate No. ………………… Dated …………… Category “V/U” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for unrestricted public exhibition subject to excisions and modifications listed in Part II on the reverse:-1.2.3.4.Universal VideoFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form V

[See rule 35 (1)]

Government of India

Central Board of Film Certification

This Certificate is Valid for Theatrical Release Only

Part I

Certificate No. ………………… Dated …………… Category “A” Film ………………………. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition, restricted to adults only, subject to the excisions and modifications listed in Part II on the reverse: –1.2.3.4.Adults OnlyFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form V-A

Government of India

Central Board of Film Certification

This Certificate is Valid for [Film on Video Tape or Compact Video Disc] Only

Part I

Certificate No. ………………… Dated …………… Category “V/A” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/ Revising Committee/ Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition, restricted to adults only, subject to the excisions and modifications listed in Part II on the reverse: –1.2.3.4.Adults Only VideoFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form VI

[See rule 35 (1)]

Government of India

Central Board Of Film Certification

This Certificate Is Valid For Theatrical Release Only

Part I

Certificate No. ………………… Dated …………… Category “UA” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/Revising Committee/Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/Revising Committee/Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition with an endorsement of caution that the question as to whether any child below the age of 12 years may be allowed to see the film should be considered by the parents or guardian of such child, and also subject to excisions and modifications listed in Part II on the reverse:-1.2.3.4.Parental GuidanceFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form VI-A

[See rule 35 (1)]

Government of India

Central Board of Film Certification

This Certificate is Valid For [Film on Video Tape or Compact Video Disc]

Part I

Certificate No. ………………… Dated …………… Category “UA” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/Revising Committee/Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/Revising Committee/Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition with an endorsement of caution that the question as to whether any child below the age of 12 years may be allowed to see the film should be considered by the parents or guardian of such child, and also subject to excisions and modifications listed in Part II on the reverse :-1.2.3.4.Further certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form VII

[See rule 35 (1)]

Government Of India

Central Board Of Film Certification

This Certificate Is Valid For Theatrical Release Only

Part I

Certificate No. ………………… Dated …………… Category “S” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the Examining Committee/Revising Committee/Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/Revising Committee/Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition restricted to members of any profession or any class of persons, subject to excisions and modifications listed in Part II on the reverse: –1.2.3.4.Specialised AudienceFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:

Form VII-A

[See rule 35 (1)]

Government of India

Central Board of Film Certification

This Certificate is Valid for [Film on Video Tape or Compact Video Disc] only

Part I

Certificate No. ………………… Dated …………… Category “V/S” Film ……………………….. Gauge MM …………. Length ……………. MTS ReelsAfter examination of the film by the members of the examining Committee/Revising Committee/Film Certification Appellate Tribunal mentioned below and on the recommendations of the said Examining Committee/Revising Committee/Film Certification Appellate Tribunal, the Board hereby certifies that the film is fit for public exhibition, restricted to members of any profession or any class of persons, subject to excisions and modifications listed in Part II on the reverse: –1.2.3.4.SPECIALISED AUDIENCE VIDEOFurther certified that the excisions and modifications imposed by the Board have actually been carried out.Name of the applicantName of the producer

Chairman

Part II

Particulars of excisions and modifications:]

[Form – VIII]

[See rules 22(9) and 24(9)]

Central Board of Film Certification

Report of Member of Examining/ Revising Committee

N.B. – Please study the guidelines issued by government once again before you preview of the film.Title of the film and language………….Colour/ Black and White Length of the film…………..(meters)/ Running time……….(minutes) Reels…………..Casette……………Gauge………Date of examination…………………Name of the member……………………

I. I certify that I have carefully examined the above film with reference to the guidelines.
I recommend refusal to certificate to the film. OR
I recommend the grant of following certificate to the film:
‘U’/’UA’/’A’/’S’
with excisions or/and modifications
without excisions or/and modifications
[Delete whichever is not applicable]
II. In the case of grant of ‘S’ certificate, please specify the class or group of persons which should constitute the specialised audiences: –
III. Reasons for refusal of certificate or grant of ‘UA’/’A’/’S’ certificate
Note. – ‘U’-Unrestricted public exhibition.
‘UA’-Unrestricted public exhibition with an endorsement that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see the film should be considered by the parents or guardian of such child.
‘A’-Public exhibition restricted to adults.
‘S’-Public exhibition restricted to members of any profession or any class of persons.
IV. Details of excisions/modifications (Please see notes below)
Sl. No. Reel No. Clear and specific description of excisions or modifications Reasons with specific reference to guidelines
V. Thematic classification (only in the case of feature films)
VI. Any other remarks (including justification for permitting certain visuals and/or words prima facie appear to be objectionable)
VII. I certify that there would be no infraction of the guidelines if the film is granted a certificate as recommended above.

I also certify that the film has been judged in its entirety from the point of view of its overall impact that the film has been examined in the light of the period depicted in the film and contemporary standards of the country and the people to which the film relates; and that the film does not deprave the morality of the people.I certify that while recommending the film for unrestricted public exhibition I have satisfied myself that the film is suitable for family viewing, including children.

……………………..

Signature

Notes. 1. While recommending excisions the beginning and end of the excision should be clearly described and the length of the excision may be given as a percentage of the total scene or in metres/feet.2. If a scene or sequence is to be reduced to a flash, only 1/2 or 1 metre will be kept in the film.3. Also if certain portions are to be completely deleted while refusing a scene or sequence these should be specified.

Form IX

(See rule 26)

I/We,……………………., the applicant(s) in respect of the film ………………………….. do hereby declare that the portion or portions objected to by the Board to Film Certification in the film ……… …………………as endorsed on the certificate have been excised from the film and the original negative (picture and sound), inter negative, inter-positive and all positive prints thereof are hereby surrendered to the Central Board of Film Certification.I/We further declare that the above declaration is correct in all respects.

………………………………….

Signature of applicant

Name:

Address:

Place…………..Date……………Notes. – (1) If so required by the Regional Officer, the applicant shall produce a certificate from the owner or manager of the laboratory, where the film was processed in such form as may be specified by the Board in this behalf, in regard to the number of positive and negative copies of the film made in that laboratory.(2) All the cuts should be jointed in the order of reel numbers indicated in the Board’s direction with white pieces in between two different cuts to distinguish them. Length of each cut should be indicated in metres separately. In case of a scene required to be reduced as per directive of the Board, the producer shall indicate the length reduced and total length retained separately.

Form X

[See rule 28(7)]

Copy/ Script/ Commentary/ Tape Record Of Commentary Of Film

This is to certify that the copy of film/script of the Film/commentary/tape record of commentary noted above submitted to the Central Board of Film Certification under rule 28 of the Cinematograph (Certification) Rules, 1983, is an exact copy of the film or its script or commentary, as the case may be, as certified by the Board with complete dialogue, song, sound effects and picturisation. The correct reel wise length of the film as actually measured and certified is given below :-

Reel No. Length in metres
1.
2.
3.
Total :

N.B. – This includes the length of the ‘Interval’ and ‘End’ pieces.

……………………………………

Signature of the applicant

Guidelines For Certification Of Films For Public Exhibition

Vide S.O. 836(E), dated 6.12.1991 and published in the Gazette of India, Ext., Point.II, Section 3(ii), dated 6.12.1991.


In exercise of the powers conferred by sub-section (2) of section 5-B of the Cinematograph Act, 1952 (37 of 1952) and in supersession of the notification of the Government of India in the Ministry of Information and Broadcasting No. S.O.9(E), dated the 7th January, 1978, except as respects things done or omitted to be done before such supersession, the Central Government hereby directs that in sanctioning films for public exhibition, the Board of Film Certification shall be guided by the following principles:

1. The objectives of film certification will be to ensure that

(a) the medium of film remains responsible and sensitive to the values and standards of society;

(b) artistic expression and creative freedom are not unduly curbed;

(c) certification is responsive to social change;

(d) the medium of film provides clean and healthy entertainments; and

(e) as far as possible, the film is of aesthetic value and cinematically of a good standard.

2. In pursuance of the above objectives, the Board of Film Certification shall ensure that

(i) anti-social activities such as violence are not glorified or justified;

(ii) the modus operandi of criminals, other visuals or words likely to incite the commission of any offence are not depicted;

(iii) scenes

(a) showing involvement of children in violence as victims or as prepetrators or as forced witnesses to violence, or showing children as being subjected to any form of child abuse;

(b) showing abuse or ridicule of physically and mentally handicapped persons; and

(c) showing cruelty to or abuse of, animals are not presented needlessly.

(iv) pointless or avoidable scenes of violence, cruelty and horror, scenes of violence primarily intended to provide entertainment and such scenes as may have the effect of desensitising or dehumanising people are not shown;

(v) scenes which have the effect of justifying or glorifying drinking are not shown;

(vi) scenes tending to encourage, justify or glamorise drug addiction are not shown;

[(vi-a) scenes tending to encourage, justify or glamorise consumption of tobacco or smoking are not shown;]

(vii) human sensibilities are not offended by vulgarity, obscenity or depravity;

(viii) such dual meaning words obviously cater to baser instincts are not allowed;

(ix) scenes degrading or denigrating women in any manner are not presented;

(x) scenes involving sexual violence against women like attempt to Tape, rape or any form of molestation, or scenes of a similar nature are avoided, and if any such incident is germane to the theme, they shall be reduced to the minimum and no details are shown;

(xi) scenes showing sexual perversions shall be avoided and if such matters are germane to the theme, they shall be reduced to the minimum and no details are shown;

(xii) visuals or words contemptuous of racial, religious or other groups are not presented;

(xiii) visuals or words which promote communal, obscurantist, anti-scientific and anti-national attitudes are not presented;

(xiv) the sovereignty and integrity of India is not called in question;

(xv) the security of the State is not jeopardised or endangered;

(xvi) friendly relations with foreign States are not strained;

(xvii) public order is not endangered;

(xviii) visuals or words involving defamation of an individual or a l7ody of individuals, or contempt of Court are not presented.

Explanation.-Scenes that tend to create scorn, disgrace or disregard of rules or undermine the dignity of Court will come tinder the term “contempt of court”; and

(xiv) National symbols and emblems are not shown except in accordL-.nce with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950).

3. The Board of Film Certification shall also ensure that the film

(i) is judged in its entirety from the point of view of its overall impacts; and

(ii) is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not deprave the morality of the audience.

4. Films that meet the above-mentioned criteria but are considered unsuitable for exhibition to non-adults shall be certified for exhibition to adult audiences only.5. (1) While certifying films for unrestricted public exhibition, the Board shall ensure that the film is suitable for family viewing, that is co say, the film should be such that all the members of the family including children can view it together.(2) If the Board, having regard to the nature, content and theme of the film, is of the opinion that it is necessary to caution the parents/ guardian to consider as to whether any child below the age of twelve years may be allowed to see such a film, the film shall be certified for unrestricted public exhibition with an endorsement to that effect.(3) If the Board, having regard to the nature, content and theme of the film, is of the opinion that the exhibition of the film should be restricted to members of any profession or any class of persons, the film shall be certified for publicexhibition restricted to the specialised audiences to be specified by the Board in this behalf.

6. The Board shall scrutinise the titles of the films carefully and ensure that they are not provocative, vulgar, offensive or violative of any of the above-mentioned guidelines.

The Cinematograph Act, 1952

Acts


The Cinematograph Act, 1952
(37 of 1952)

[21st March, 1952]
An Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs.

Be it enacted by Parliament as follows:

Part I
Preliminary

1. Short title, extent and commencement .(1) This Act may be called The Cinematograph Act , 1952.
(2) Parts I, II and IV extends to the whole of India [* * *] and Part III extends to [the Union territories] only.
(3) This Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: –
[Provided that Parts I and II shall come into force in the State of Jammu and Kashmir only on such date after the commencement of the Cinematograph (Amendment) Act, 1973 (25 of 1973), as the Central Government may, by notification in the Official Gazette, appoint.]

2. Definitions .In this Act, unless the context otherwise requires,
(a) adult means a person who has completed his eighteenth year;
[(b) Board means the Board of Film Certification constituted by the Central Government under section 3;]
[(bb) certificate means the certificate granted by the Board under section 5-A:]
(c) cinematograph includes any apparatus for the representation of moving pictures or series of pictures;
(d) district magistrate, in relation to a presidency-town, means the Commissioner of police;
[dd) film means a cinematograph film;]
(e) place includes a house, building, tent and any description of transport, whether by sea, land or air;
(f) prescribed means prescribed by rules made under this Act;
[(g) regional officer means a regional officer appointed by the Central Government under section 5 and includes an additional regional officer and an assistant regional officer;
(h) Tribunal means the Appellate Tribunal constituted under section 5-D.

2-A. Construction of references to any law not in force or any functionary not in existence in the State of Jammu and Kashmir .Any reference in this Act to any law which is not in force, or any functionary not in existence, in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to the corresponding law in force, or to the corresponding functionary in existence, in that State.


Part II
Certification Of Films For Public Exhibition

3. Board of Film Certification .

(1) For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the Official Gazette, constitute a Board to be called the [Board of Film Certification] which shall consist of a Chairman and [not less than twelve and not more than twenty-five] other members appointed by the Central Government.
(2) The Chairman of the Board shall receive such salary and allowances as may be determined by the Central Government, and the other members shall receive such allowances or fees for attending the meetings of the Board as may be prescribed.
(3) The other terms and conditions of service of the members of the Board shall be such as may be prescribed.

4. Examination of films .

(1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for a certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner,
(i) sanction the film for unrestricted public exhibition: [*]
[Provided that, having regard to any material in the film, if the Board is of the opinion that it is necessary to caution that the question as to whether any child below the age of twelve years may be allowed to see such a film should be considered by the parents or guardian of such child, the Board may sanction the film for unrestricted public exhibition with an endorsement to that effect; or]
(ii) sanction the film for public exhibition restricted to adults; or
[(iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or]
[(iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or ]
(iv) refuse to sanction the film for public exhibition.
(2) No action under [the proviso to clause (i), clause (ii), clause (ii-a), clause (iii) or clause (iv)] of sub-section (1) shall be taken by the Board except after giving an opportunity to the applicant for representing his views in the matter.

5. Advisory panels .

(1) For the purpose of enabling the Board to efficiently discharge its functions under this Act, the Central Government may establish at such regional centres as it thinks fit, advisory panels each of which shall consist of such number of persons, being persons qualified in the opinion of the Central Government to judge the effect of films on the public, as the Central Government may think fit to appoint thereto.
(2) At each regional centre there shall be as many regional officers as the Central Government may think fit to appoint, and rules made in this behalf may provide for the association of regional officers in the examination of films.
(3) The Board may consult in such manner as may be prescribed, any advisory panel in respect of any film for which an application for a certificate has been made.
(4) It shall be the duty of every such advisory panel, whether acting as a body or in committees as may be provided in the rules made in this behalf, to examine the film and to make such recommendations to the Board as it thinks fit.
(5) The members of the advisory panel shall not be entitled to any salary but shall receive such fees or allowances as may be prescribed.

5-A. Certification of films .

[(1) If, after examining a film or having it examined in the prescribed manner, the Board considers that
(a) the film is suitable for unrestricted public exhibition, or as the case may be, for unrestricted public exhibition with an endorsement of the nature mentioned in the proviso to clause (i) of sub-section (1) of section 4, it shall grant to the person applying for a certificate in respect of the film a U certificate or, as the case may be, a UA certificate; or
(b) the film is not suitable for unrestricted public exhibition, but is suitable for public exhibition restricted to adults or, as the case may be, is suitable for public exhibition restricted to members of any profession or any class of persons, it shall grant to the person applying for a certificate in respect of the film an a certificate or, as the case may be, a S certificate,
and cause the film to be so marked in the prescribed manner:
Provided that the applicant for the certificate, any distributor or exhibitor or any other person to whom the rights in the film have passed shall not be liable for punishment under any law relating to obscenity in respect of any matter contained in the film for which certificate has been granted under clause (a) or clause (b).]
(2) A certificate granted or an order refusing to grant a certificate in respect of any film shall be published in the Gazette of India.
(3) Subject to the other provisions contained in this Act, a certificate granted by the Board under this section shall be valid throughout India for a period of ten years.

5-B. Principles for guidance in certifying films .

(1) a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of Court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.

5-C. Appeals .

(1) Any person applying for a certificate in respect of a film who is aggrieved by any order of the Board
(a) refusing to grant a certificate; or
(b) granting only an a certificate; or
(c) granting only a S certificate; or
(d) granting only a Ua certificate; or
(e) directing the applicant to carry out any excisions or modifications,
may, within thirty days from the date of such order, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the aforesaid period of thirty days, allow such appeal to be admitted within a further period of thirty days.
(2) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fees, not exceeding rupees one thousand, as may be prescribed.

5-D. Constitution of Appellate Tribunal .

(1) For the purpose of hearing appeals against any order of the Board under section 5-C, the Central Government shall, by notification in the Official Gazette, constitute an Appellate Tribunal.
(2) The head office of the Tribunal shall be at New Delhi or at such other place as the Central Government may, by notification in the Official Gazette, specify.
(3) Such Tribunal shall consist of a Chairman and not more than four other members appointed by the Central Government.
(4) a person shall not be qualified for appointment as the Chairman of the Tribunal unless he is a retired Judge of a High Court, or is a person who is qualified to be a Judge of a High Court.
(5) The Central Government may appoint such persons who, in its opinion, are qualified to judge the effect of films on the public, to be members of the Tribunal.
(6) The Chairman of the Tribunal shall receive such salary and allowances as may be determined by the Central Government and the members shall receive such allowances or fees as may be prescribed.
(7) Subject to such rules as may be made in this behalf, the Central Government may appoint a Secretary and such other employees as it may think necessary for the efficient performance of the functions of the Tribunal under this Act.
(8) The Secretary to, and other employees of, the Tribunal shall exercise such powers and perform such duties as may be prescribed after consultation with the Chairman of the Tribunal.
(9) The other terms and conditions of service of the Chairman and members of, and the Secretary to, and other employees of, the Tribunal shall be such as may be prescribed.
(10) Subject to the provisions of this Act, the Tribunal may regulate its own procedure.
(11) The Tribunal may, after making such inquiry into the matter as it considers necessary, and after giving the appellant and the Board an opportunity of being heard in the matter, make such order in relation to a film as it thinks fit and the Board shall dispose of the matter in conformity with such order.

5-E. Suspension and revocation of certificate .

(1) Notwithstanding anything contained in sub-section (2) of section 6, the Central Government may, by notification in the Official Gazette, suspend a certificate granted under this Part, for such period as it thinks fit or may revoke such certificate if it is satisfied that
(i) the film in respect of which the certificate was granted, was being exhibited in a form other than the one in which it was certified; or
(ii) the film or any part thereof is being exhibited in contravention of the provisions of this Part or the rules made thereunder.
(2) Where a notification under sub-section (1) has been published, the Central Government may require the applicant for certificate or any other person to whom the rights in the film have passed, or both, to deliver up to the certificate and all duplicate certificates, if any, granted in respect of the film to the Board or to any person or authority specified in the said notification.
(3) No action under this section shall be taken except after giving an opportunity to the person concerned for representing his views in the matter.
(4) During the period in which a certificate remains suspended under this section, the film shall be deemed to be an uncertified film.

5-F. Review of orders by Central Government .

(1) Where an applicant for a certificate or any other person to whom the rights in the film have passed, is aggrieved by any order of the Central Government under section 5-E, he may, within sixty days of the date of publication of the notification in the Official Gazette, make an application to the Central Government for review of the order, setting out in such application the grounds on which he considers such review to be necessary:
Provided that the Central Government may, if it is satisfied that the applicant for a certificate or that other person was prevented by sufficient cause from filing an application for review within the aforesaid period of sixty days, allow such application to be filed within a further period of sixty days.
(2) On receipt of the application under sub-section (1), the Central Government may, after giving the aggrieved person a reasonable opportunity of being heard, and after making such further inquiry, as it may consider necessary, pass such order as it thinks fit, confirming, modifying or reversing its decision and the Board shall dispose of the matter in conformity with such order.]

6. Revisional powers of the Central Government .

(1) Notwithstanding anything contained in this Part, the Central Government [may, of its own motion, at any stage,] call for the record of any proceeding in relation to any film which is pending before, or has been decided by, the Board, [or, as the case may be, decided by the Tribunal (but not including any proceeding in respect of any matter which is pending before the Tribunal)] and after such inquiry into the matter as it considers necessary, make such order in relation thereto as it thinks fit, and the Board shall dispose of the matter in conformity with such order:
Provided that no such order shall be made prejudicially affecting any person applying for a certificate or to whom a certificate has been granted, as the case may be, except after giving him an opportunity for representing his views in the matter:

[Provided further that nothing in this sub-section shall require the Central Government to disclose any fact which it considers to be against public interest to disclose.]

(2) Without prejudice to the powers conferred on it under sub-section (1), the Central Government may, by notification in the Official Gazette, direct that
(a) a film which has been granted a certificate shall be deemed to be an uncertified film in the whole or any part of India; or
(b) a film which has been granted a U certificate [or a UA certificate or a S certificate] shall be deemed to be a film in respect of which an A certificate has been granted; or
(c) the exhibition of any film be suspended for such period as may be specified in the direction:
Provided that no direction issued under clause (c) shall remain in force for more than two months from the date of the notification.
(3) No action shall be taken under clause (a) or clause (b) of sub-section (2) except after giving an opportunity to the person concerned for representing his views in the matter.
(4) During the period in which a film remains suspended under clause (c) of sub-section (2), the film shall be deemed to be an uncertified film.

6-A. Information and documents to be given to distributors and exhibitors with respect to certified films .Any person who delivers any certified film to any distributor or exhibitor shall, in such manner as may be prescribed, notify to the distributor or exhibitor, as the case may be, the title, the length of the film, the number and the nature of the certificate granted in respect thereof and the conditions, if any, subject to which it has been so granted, and any other particulars respecting the film which may be prescribed.]

6-B. Offences to be cognizable .[Omitted by the Cinematograph (Amendment) Act, 1984 (56 of 1984), section 2 (w.e.f. 27-8-1984).]

7. Penalties for contraventions of this Part .

(1) If any person
(a) exhibits or permits to be exhibited in any place
(i) any film other than a film which has been certified by the Board as suitable for unrestricted public exhibition or for public exhibition restricted to adults [or to members of any profession or any class of persons] and which, when exhibited, displays the prescribed mark of the Board and has not been altered or tampered with in any way since such mark was affixed thereto,
(ii) any film, which has been certified by the Board as suitable for public exhibition restricted to adults, to any person who is not an adult,

(ii-a) any film which has been certified by the Board as suitable for public exhibition restricted to any profession or class of persons, to a person who is not a member of such profession or who is not a member of such class, or]
(b) without lawful authority (the burden of proving which shall be on him), alters or tampers with in any way any film after it has been certified, or
(c) fails to comply with the provision contained in section 6-A or with any order made by the Central Government or by the Board in the exercise of any of the powers or functions conferred on it by this Act or the rules made thereunder, [[he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to one lakh rupees, or with both, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:

Provided that a person who exhibits or permits to be exhibited in any place a video film in contravention of the provisions of sub-clause (i) of clause (a) shall be punishable with imprisonment for a term which shall not be less than three months, but which may extend to three years and with fine which shall not be less than twenty thousand rupees, but which may extend to one lakh rupees, and in the case of a continuing offence with a further fine which may extend to twenty thousand rupees for each day during which the offence continues:

Provided further that a Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months, or a fine of less than twenty thousand rupees]:

Provided further that notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any Metropolitan Magistrate, or any Judicial Magistrate of the first class specially empowered by the State Government in this behalf, to pass a sentence of fine exceeding five thousand rupees on any person convicted of any offence punishable under this Part:

Provided also that no distributor or exhibitor or owner or employee of a cinema house shall be liable to punishment for contravention of any condition of endorsement of caution on a film certified as UA under this Part.
(2) If any person is convicted of an offence punishable under this section committed by him in respect of any film, the convicting Court may further direct that the film shall be forfeited to the Government.
(3) The exhibition of a film in respect of which an A certificate [or a s certificate or a UA certificate] has been granted, to children below the age of three years accompanying their parents or guardians shall not be deemed to be an offence within the meaning of this section.

7-A. Power of seizure .

(1) Where a film in respect of which no certificate has been granted under this Act is exhibited, or a film certified as suitable for public exhibition restricted to adults is exhibited to any person who is not an adult or a film is exhibited in contravention of any of the other provisions contained in this Act or of any order made by the Central Government, [the Tribunal] or the Board in the exercise of any of the powers conferred on it, any police officer may, [* * *] enter any place in which he has reason to believe that the film has been or is being or is likely to be exhibited, search it and seize the film.
(2) All searches under this Act shall be carried out in accordance with the provisions of the [Code of Criminal Procedure, 1973 (2 of 1974),] relating to searches.

7-B. Delegation of powers by Board .

(1) The Central Government may, by general or special order, direct that any power, authority or jurisdiction exercisable by the Board under this Act shall, [in relation to the certification of the films under this Part] and subject to such conditions, if any, as may be specified in the order, be exercisable also by the Chairman or any other member of the Board, and anything done or action taken by the Chairman or other member specified in the order shall be deemed to be a thing done or action taken by the Board.
[(2) The Central Government may, by order and subject to such conditions and restrictions as may be prescribed, authorise the regional officers to issue provisional certificates.]

7-C. Power to direct exhibition of films for examination .

For the purpose of exercising any of the powers conferred on it by this Act, the Central Government [, the Tribunal] or the Board may require any film to be exhibited before it or, before [any person or authority] specified by it in this behalf.
7-D. Vacancies, etc., not to invalidate proceeding .No act or proceeding of [the Tribunal], the Board or of any advisory panel shall be deemed to be invalid by reason only of a vacancy in, or any defect in, the constitution of [the Tribunal,] the Board or panel, as the case may be.

7-E. Members of the Board and advisory panels, to be public servants .

All members of [the Tribunal] the Board and of any advisory panel shall, when acting or purporting to act in pursuance of any of the provisions of this Act, be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

7-F. Bar of legal proceedings .

No suit or other legal proceeding shall lie against [the Central Government, the Tribunal, the Board], advisory panel or any officer or member of [the Central Government, the Tribunal, the Board or] advisory panel, as the case may be, in respect of anything which is in good faith done or intended to be done under this Act.]

8. Power to make rules .

(1) The Central Government may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Part.
[(2) In particular, and without prejudice to the generality of the foregoing power, rules made under this section may provide for
(a) the allowances or fees payable to the members of the Board;
(b) the terms and conditions of service of the members of the Board;
(c) the manner of making an application to the Board for a certificate and the manner in which a film has to be examined by the Board and the fees to be levied therefor;
(d) the association of regional officers in the examination of films, the conditions and restrictions subject to which regional officers may be authorised under section 7-B to issue provisional certificates and the period of validity of such certificates;
(e) the manner in which the Board may consult any advisory panel in respect of any film;
(f) the allowances or fees payable to the members of advisory panel;
(g) the marking of the films;
(h) the allowances or fees payable to the members of the Tribunal ;
(i) the powers and duties of the Secretary to, and other employees of, the Tribunal;
(j) the other terms and conditions of service of the Chairman and members of, and the Secretary to, and other employees of, the Tribunal;
(k) the fees payable by the appellant to the Tribunal in respect of an appeal;
(l) the conditions (including conditions relating to the length of films in general or any class of films, in particular) subject to which any certificate may be granted, or the circumstances in which any certificate shall be refused;
(m) any other matter which is required to be or may be prescribed.]

(3) Every rule made by the Central Government under this Part shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
9. Power to exempt .The Central Government may, by order in writing [exempt], subject to such conditions and restrictions, if any, as it may impose, the exhibition of any film or class of films from any of the provisions of this Part or of any rules made thereunder.

Part III
Regulation Of Exhibitions By Means Of Cinematographs

10. Cinematograph exhibitions to be licensed .Save as otherwise provided in this Part, no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under this Part or otherwise than in compliance with any conditions and restrictions imposed by such license.

11. Licensing authority .

The authority having power to grant licenses under this Part (hereinafter referred to as the licensing authority) shall be the District Magistrate:
Provided that the State Government may, by notification in the Official Gazette, constitute, for the whole or any part of a [Union territory], such other authority as it may specify in the notification to be the licensing authority for the purposes of this Part.

12. Restrictions on powers of licensing authority.

(1) The licensing authority shall not grant a license under this Part, unless it is satisfied that
(a) the rules made under this Part have been substantially complied with, and
(b) adequate precautions have been taken in the place, in respect of which the license is to be given, to provide for the safety of persons attending exhibitions therein.
(2) Subject to the foregoing provisions of this section and to the control of the State Government, the licensing authority may grant licenses under this Part to such persons as that authority thinks fit and on such terms and conditions and subject to such restrictions as it may determine.
(3) Any person aggrieved by the decision of a licensing authority refusing to grant a license under this Part may, within such time as may be prescribed, appeal to the State Government or to such officer as the State Government may specify in this behalf and the State Government or the officer, as the case may be, may make such order in the case as it or he thinks fit.
(4) The Central Government may, from time to time, issue directions to licensees generally or to any licensee in particular for the purpose of regulating the exhibition of any film or class of films, so that scientific films, films intended for educational purposes, films dealing with news and current events, documentary films or indigenous films secure an adequate opportunity of being exhibited, and where any such directions have been issued those directions shall be deemed to be additional conditions and restrictions subject to which the license has been granted.

13. Power of Central Government or local authority to suspend exhibition of films in certain cases .

(1) The Lieutenant Governor or, as the case may be, the Chief Commissioner, in respect of the [whole or any Part of a Union territory] and the District Magistrate in respect of the district within his jurisdiction, may, if he is of opinion that any film which is being publicly exhibited is likely to cause a breach of the peace, by order, suspend the exhibition of the film and during such suspension the film shall be deemed to be an uncertified film in the State, part or district, as the case may be.

(2) Where an order under sub-section (1) has been issued by the Chief Commissioner or a District Magistrate, as the case may be, a copy thereof, together with a statement of reasons therefor, shall forthwith be forwarded by the person making the same to the Central Government, and the Central Government may either confirm or discharge the order.
(3) An order made under this section shall remain in force for a period of two months from the date thereof, but the Central Government may, if it is of opinion that the order should continue in force, direct that the period of suspension shall be extended by such further period as it thinks fit.

14. Penalties for contravention of this Part .

If the owner or person in charge of a cinematograph uses the same or allows it to be used, or if the owner or occupier of any place permits that place to be used in contravention of the provisions of this Part or of the rules made thereunder, or of the conditions and restrictions upon or subject to which any license has been granted under this Part, he shall be punishable with fine which may extend to one thousand rupees and, in the case of a continuing offence, with a further fine which may extend to one hundred rupees for each day during which the offence continues.

15. Power to revoke license .

Where the holder of a license has been convicted of an offence under section 7 or section 14, the license may be revoked by the licensing authority.

16. Power to make rules .

(1) The Central Government may, by notification in the Official Gazette, make rules
(a) prescribing the terms, conditions and restrictions, if any, subject to which licenses may be granted under this Part;
(b) providing for the regulation of cinematograph exhibitions for securing the public safety;
(c) prescribing the time within which and the conditions subject to which an appeal under sub-section (3) of section 12 may be preferred.
[(2) Every rule made by the Central Government under this Part shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

17. Power to exempt .

The Central Government may, by order in writing [exempt], subject to such conditions and restrictions as it may impose, any cinematograph exhibition or class of cinematograph exhibitions from any of the provisions of this Part or of any rules made thereunder.

Part IV
Repeal

18. Repeal .The Cinematograph Act, 1918 (2 of 1918) is hereby repealed:
Provided that in relation to Part A States and Part B States the repeal shall have effect only in so far as the said Act relates to the sanctioning of cinematograph films for exhibition.


 

K. Veeraswami vs Union Of India And Others[SC 1991 JULY]

Keywords : Judicial Corruption

Capture

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 theChief Justice,  or  a Judge of the Supreme Court can be  launched after  obtaining  sanction  of the  competent  authority  asenvisaged by s. 6 of the Prevention of Corruption Act.

Per Verma, J. (dissenting)– (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.

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


Supreme Court of IndiaSupreme Court of India

K. Veeraswami vs Union Of India And Others

 DATE: on 25 July, 1991

AUTHOR :  K Shetty

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

ACT:    Prevention of  Corruption Act, 1947:  Ss. 2,  5(1)(e),5(2),  6(1)(c)

JUDGMENT:

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.

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:-
“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 income.”Therefore, it is clear that a Judge will be liable for committing criminal misconduct within the meaning of clause
(e) of sub-section (1) of section 5 of the said Act if he has in his possession pecuniary resources or property dis- proportionate to his known sources of income for which the public servant (or a Judge as the public servant) cannot satisfactorily account. Section 6(1)(c) specifically enjoins that no court shall take cognizance of an offence punishable under Section 5 of this Act, alleged to have been committed by a public servant i.e. the Judge of the High Court includ- ing the Chief Justice of the High Court as in the present case, except with the previous sanction under clause (c) in the case of any other person, of the authority competent to remove him from his office. So to initiate a proceeding against a Judge of a Supreme Court for criminal misconduct failing under Section 5(1)(e), previous sanction of the authority who is competent to remove a Judge including Chief Justice of the High Court from his office, is imperative. A Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary appointed under Article 124 and under Article 217 of the Constitution re- spectively. Sub-article 2 of Article 124 further provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. It also provides that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief justice, the Chief Justice of the High Court. Sub-article 4 of the said article 124 further enjoins that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total member- ship of that House and by a majority of not less than two- thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Sub-article (5) also provides that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). Article 2 18 states that provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court.
On a plain reading of the provisions of sub-article 4 of Article 124, a Judge of the Supreme Court can only be re- moved on the ground of proved misbehaviour or incapacity by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or inca- pacity. In other words, the President cannot on its own remove a Judge of the Supreme Court unless an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, is passed and presented to him for removal of the Judge on the ground of proved misbehaviour or incapacity. Therefore, the repository of this power is not in the Presi- dent alone but it is exercised after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of that House is presented to the President. Without such an address by each of the House of the Parliament, the President is not empowered under the Constitution to order removal Of a Judge of the Supreme Court from his office. Article 2 18 lays down that a Judge of the High Court may be removed from his office by the President in the manner provided under clauses (4) and (5) of Article 124. So viewing the aforesaid constitutional provisions for removal of a Judge for proved misbehaviour or incapacity, it is imperative that each House of the Parlia- ment shall make an address to the President after the same is supported by a majority of the total membership of that House and by a majority for not less than two-thirds of the members of that House present and voting. Unless that ad- dress is presented to the President in the same session for such removal, the President is not empowered under the Constitution to make the order for removal of the Judge of the Supreme Court of India or of the Judge of the High Court on the ground of proved misbehaviour or incapacity. Of course, the power of the President to remove a Judge of the Supreme Court or of the High Court is to be exercised by the President in the manner expressly laid down in clause 4 of Article 124. In the case of Union of India v. Sankalchand, AIR 1977 (SC) 2328 it has been observed by majority of the Constitution Bench that there is no need or justification, in order to uphold or protect the independ- ence of the judiciary, for construing Article 222(1) to mean that a Judge cannot be transferred from one High Court to another without his consent.
“The power to transfer a High Court Judge is conferred by the Constitution in public inter- est and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line or who, for some reason or the other, has fallen from its grace. The executive possesses no such power under our Constitution and if it can be shownthough we see the difficulties in such showing–that a transfer of a High Court Judge is made in a given case for an extraneous reason, the exercise of the power can appropriately be struck down as being vitiated by legal mala fides. The extraordinary power which the Constitution has conferred on the President by Art. 222(1) cannot be exercised in a manner which is calculated to defeat or destroy in one stroke the object and purpose of the various provisions conceived with such care to insulate the judiciary from the influence and pressures of the executive. The power to punish a High Court Judge, if one may so describe it, is to be found only in Art. 2 18 read with Art. 124(4) and (5) of the Constitu- tion, under which a Judge of the High Court can be removed from his office by an order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less then two-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Thus, if the power of the President, who has to act on the advice of the Council of Ministers, to transfer a High Court Judge for reasons not bearing on public interest but arising out of whim, caprice or fancy of the executive or its desire to bend a Judge to its own way of thinking, there is no possibility of any interference with the independence of the judiciary if a Judge is transferred without his consent.The same view about the independence of the judiciary from the con-
trol of the executive has been spelt out by the observations of the Constitution Bench of Seven Judges in the case of S.P. Gupta & Ors. v. President of India and Ors., AIR 1982 (SC) 149.
“The concept of independence of judiciary is a noble concept which inspires the Constitutional Scheme and constitute the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judi- ciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse of abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse or power by the executive and there it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth’s case (AIR 1977 SC 2326) (supra). But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from execu- tive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions. namely fearlessness of other power centres economic or political, and freedom from prejudices acquired and nourished by the class of which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer: “Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government’s pleasure.The tyceon, the communalist, the parochialist, the faddist, the extremist and radical reactionary lying coiled up and sub- consciously shaping judicial menrations are menaces to judicial independence when they are at variance with parts III and IV of the Paramount Parchment”.Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you.” This is the principle of independence of the judi- ciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this princi- ple of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution. The third most crucial question that fails for consider-ation in this case is 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 prosecution of the Judge under the provi- sions as enjoined by Section 6 of the Prevention of Corrup- tion Act, 1947. Section 6 has been couched in negative terms to the following effect:
“No Court shall take cognizance of an offence punishable under Section 16 1 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860), or under sub-section (2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, …(c) in the ease of any other person, of the authority competent to remove him from his office.In order to launch a prosecution against a Judge either of the Supreme Court or of the High Court or the Chief Jus- tice of the High Court previous sanction of the authority competent to remove a Judge from his office is mandatorily required. The question, therefore, arises who is the author- ity competent to grant sanction. The Judge of the Supreme Court or the Judge of the High Court is appointed under the provisions of Article 124 or under the provisions of Article 217 respec-
tively. A Judge of the Supreme Court shall be appointed by the President by the warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Court in the State as the President may deem neces- sary for the purpose and shall hold office until he attains the age of 65 years. Similarly, a Judge of the High Court shall be appointed by the President by the warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in case of an appoint- ment of the Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office except in the case of an additional judge till he attains the age of 62 years. It is, therefore, evident that a Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary as has been observed by this Court in the decisions cited hereinbefore and to maintain 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 lis against the Central Government or the State Government. The Judge is made total- ly independent of the control and influence of the executive by mandatorily embodying in article 124 or article-217 that a Judge can only be removed from his office in the manner provided in clause (4) and (5) of article 124. Thus, a Judge either of the High Court or of the Supreme Court is inde- pendent of the control of the executive while deciding cases between the parties including the Central Government and State Government uninfluenced by the State in any manner whatsoever. It is beyond any pale of doubt that there is no master and servant relationship or employer and employee relationship between a Judge of the High Court 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. The President has not been given the sole power or the exclusive power to remove a Judge either of the Supreme Court or of the High Court from his office though the Presi- dent appoints the Judge by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as he may deem necessary for that purpose and in case of the appointment of the Judge of the High Court, the President appoints a Judge by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and in a case of appointment of a Judge other than the Chief Jus- tice, the Chief Justice of the High Court. The only mode of removal of a Judge from his office on the ground of proved misbehaviour or incapacity is laid down in clauses (4) and (5) of Article 124. It is has been eloquently and vehemently urged on behalf of the appellant that since the Judge of the Supreme Court as well as of the High Court is a constitu- tional functionary and there is no employer and employee relationship or master and servant relationship between the Judge and the President of India and for that the Central Government or the State Government there is no authority to remove the Judge from ‘his office by the executive except by taking recourse to procedure of impeachment as envisaged in Article 124(4) and (5) of the Constitution of India. It has been further urged in this connection that if it is assumed that the President has the power to remove a Judge of the Supreme Court or of the High Court from his office it will do away with the independence of the judiciary and will being the judiciary under the control of the executive indirectly in as much as under Article 74 of the Constitution of India, the President while exercising his executive power has to act on the aid and advice of the Council of Ministers with the Prime Minis- ter at the Head, as has been held by this Court in Shamsher Singh & Anr. v. State of Punjab, [1975] 1 SCR 814 and S.P. Gupta & Ors. etc. etc. v. Union of Inida & Ors. etc. etc., (supra). It has been, therefore, urged that Section 6(i)(C) of the Prevention of Corruption Act, 1947 is not applicable to the case of a Judge of the Supreme Court or of the High Court No prosecution can be launched against a Judge of the Supreme Court or of the High Court under the provisions of the said Act except in the mode envisaged in Article 124, clauses 4 and 5 of the Constitution for removal of the Judge. The FIR in question, which has been lodged against the appellant should be quashed and set-aside Section 2 of the Prevention of Corruption Act denotes a public servant as defined in Section 21 of the Indian Penal Code (45 of 1860). It has been noticed hereinbefore that the third clause particularly of Section 21 of the Indian Penal Code includes every Judge including any person empowered by law to dis- charge whether by himself or as a member of any body of persons any adjudicatory functions. Therefore a Judge of the High Court or of the Supreme Court comes within the defini- tion of public servant and he is liable to be prosecuted under the provisions of ‘the Prevention of Corruption Act. It is farthest from our mind that a Judge of the Supreme Court or that of the High Court will be immune from prosecu- tion for criminal offences committed during the tenure of his office under the provisions of the Prevention of Corrup- tion Act.
In these circumstances the only question to be considered is who will be the authority or who is the authority to grant sanction for prosecution of a Judge of the High Court under section 6(1)(c) of the said Act. The Judge as a con- stitutional functionary being appointed by the President can only be removed by mandatory procedure provided under Arti- cle 124 of the Constitution and in no other manner. The Judges (Inquiry) Act, 1968 has been enacted by Parliament to regulate the procedure for the investigation and proof of the misbe- haviour or incapacity of a Judge of the Supreme Court under clause (5) of subsection 1 of Article 124 of the Constitu- tion. The Judges (Inquiry) Rules, 1969 have been framed under section 7(4) of the Judges (Inquiry) Act, 1968. The said Act and the Rules made thereunder only provide for removal of a Judge on the ground of proved misbehaviour or inability. It does not provide for prosecution of a Judge for offences under section 5(1)(e) of the Prevention of Corruption Act. It is apropos to mention in this connection that in England, before the full development of ministerial responsibility, impeachment was a weapon enabling the Com- mons to call to account ministers appointed by, and respon- sible to, the Crown. As the commons acquired direct control over ministers, there was no need to employ the cumbersome machinery of impeachment and there has been no impeachment since 1805. As impeachment of political offenders might involve not only deprivation of office but other penalties, the royal prerogative of pardon does not extend to prevent- ing impeachment but extends to pardoning punishments in- flicted on an impeachment. In England, offices held during good behaviour may in the event of misconduct be determined by impeachment. In practice, however, an address to the Crown for the removal of a judge must originate in the House of Commons; the procedure is judicial and the judge is entitled to be heard. There is no instance of the removal of a judge by this method since the Act of Settlement. This power to remove by impeachment or address, a person holding office during good behaviour, is an essential counterpart to the independence secured to the holders of high office by making their tenure one of good behaviour instead of at pleasure.
Under Art. II, s. 4, U.S. Constitution, the President, VicePresident and ‘all civil officers of the United States can be removed from office on impeachment for, and convic- tion of, “Treason, Bribery or other high Crimes and misde- meanours”. Since the President of the United States who is the, highest executive authority of the State, an impeach- ment has been provided for and in fact, President Johnson was impeached in 1867 for high crimes and misdemeanours. In 1917, Justice Archibald of the Commerce Court was’removed from office by impeachment for soliciting for himself and others, favours from railroad companies, some of which were at the time litigants in his court; in 1936 the removal of Judge Wright of the Florida Court for conduct in relation to a receivership Which evoked serious doubts as to this integ- rity, although he was acquitted of specific charges, seem to have restored the wider view. For, in neither case, were the two judges found guilty of an indictable offence. It has been said that:
“As to the Judges of the United States at least lack of ‘good behaviour’ and ‘high crimes and misdemeanours’ are overlapping if not precisely coincidental concepts.”(Seervai’s Constitutional Law of India, Third Edition, Vol.II, page 1698 paras 18.8 and 18.9).
It has been urged by the Solicitor General as well as the Additional Solicitor General that the Judges of the High Court cannot be said to be exempted from prosecution in respect of offences provided in the Prevention of Corruption Act. It has been urged further that under Article 361, the President and the Governor have been given protection from being answerable to any court for the exercise and perform- ance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Clause 2 of the said Article further provides that no criminal proceedings what- soever shall be instituted or Continued against the Presi- dent, or the Governor of a State, in any court during his term of office. No such immunity from criminal prosecution has been provided for in the case of a Judge of the High Court or of the Supreme Court. It has, therefore, been urged that the High Court should ensure modalities for launching prosecution against a Judge under the said Act. Undoubtedly, respect for the judiciary and its public credibility and dignity has to be maintained in order to ensure respect for the Judges in public and also for the decisions rendered by the judges. It is, therefore, necessary to evolve some method commensurate with the grant of sanction in cases of serious allegation corruption and acquisition or the posses- sion of disproportionate assets which the Judge cannot satisfactorily account for’or possession of property dispro- portionate to the sources of income of the Judge. If these things are allowed to go unnoticed it will create a serious inroad on the dignity respect, and credibility and integrity of the High Office which a Judge of the Supreme Court and of the High Court occupies resulting in the erotion on the dignity and respect for the high office of the Judges in the estimation of the public. As has been suggested by my learned Brother Shetty, J. that the President is given the power to appoint the Judges of the Supreme Court as well as of the High Court by warrant under his hand and seal and similarly even after passing of an address by both the Houses of the Parliament in the manner provided in Article 124, clauses (4) and (5) and placed before the President, a Judge cannot be removed from his office unless and order to that effect is passed by the President. The President, therefore, 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. The President, therefore, being the authority competent to appoint and to remove a Judge, of course in accordance with the procedure envisaged in Article 124, clauses (4) and (5) of the Constitution, may be deemed to be the authority to grant sanction for prosecution of a Judge under the provisions of Section 6(1)(c) in re- spect of the offences provided in section 5(1)(e) of the Prevention of Corruption Act, 1947. In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India If the Chief Justice of India. If the chief Justices of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the Presi- dent shall not accord sanction to prosecute the Judge;This will save the Judge concerned from unnecessary harassment as weal as from frivolous prosecution against him as suggested by my learned brother Shetty, J. in his judgment. Similarly in the case of Chief Justice of the Supreme Court the Presi- dent shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. The purpose of grant of previ- ous sanction before prosecuting a public servant i.e. a Judge of the High Court or of the Supreme Court is to pro- tect the Judge from unnecessary harassment and frivolous prosecution more particularly 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. Mention may be made in this connec- tion to the decision in C.K. Daphtary v.O.P. Gupta, A.I.R. 197 1 SC 1132, wherein it has been observed:
“It seems to us that whoever drafted the Impeachment Motion drafted it with a view to bring the facts within the meaning of the express “misbehaviour” in Article 124(4) for he must have realised that to say that a Judge has committed errors, even gross errors, cannot amount to “misbehaviour”.The contention that frivolous prosecution can be launched against a Judge for giving a judgment against the Central Government or any of its Officers is of no avail in as much as such decision does not amount to misbehaviour within the meaning of the Article 124 of the Constitution.
It is also necessary to mention in this connection that the appellant resigned his post of Chief Justice when FIR was lodged by the CBI and so he ceased to be a public serv- ant on the date of lodging the FIR against him by the CBI. The scope and applicability of section 6 of the Prevention of Corruption Act came to be considered in the case of R.S. Nayak v.A.R. Antulay, [1984] 2 SCR 495 before a Constitution Bench of this Court where it has been observed:
“Section 6 bars the Court from taking cogni- zance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction …………. Section 6 creates a bar to the court from taking cogni- zance of offences therein enumerated except with the previous sanction of the authority set out in clause (a) (b) & (c) of sub-sec. (I),. The object underlying such provision Was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Sec. 6 and similar sections, is that there should not be unneces- sary harassment of public servant (C.R. Bansi v. State of Maharashtra), [1971] 3 S.C.R. 236. Existence thus of a valid sanction is a pre- requisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the of- fence alleged to have been committed by him as public servant. Undoubtedly the accused must be a public’ servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Sec. 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is con- templated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under section 6 has been held to be a trial without jurisdiction by the court. (R.R. Chari v. State of U.P., and S.N. Bose v. State of Bihar), In Mohd. Iqbal Ahmed v. State of A.P., it was held that the terminus a quo for a valid sanction is the time when the court is called upon to take cognizance of the offence. Therefore, when the offence is alleged to have been committed the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Sec. 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital considera- tion ceases to exist.”In the present appeal the appellant ceases to be a public servant as h. resigned from the office. Therefore at the time of filing the FIR the appellant ceases to be a public servant and so no sanction under Sec. 6(1)(c) of the said act is necessary. The main plank of the argument regarding sanction is, therefore, non-existent.

In these circumstances the judgment and order of the High Court dismissing the application under Secll. 482 of the Code of Criminal Procedure is in my considered opinion, wholly in accordance with law and as such the Order of the High Court has to be upheld in any circumstances. I agree with the conclusion of my learned brother Shetty, J. The appeal is, therefore, dismissed. The trial of Criminal Case No. 46/77 filed by the Respondent be proceeded with.


K. JAGANNATHA SHETTY, J. This appeal by certificate under Articles 132(1) and 134(1)(e) of the Constitution has been filed by the former Chief Justice of the Madras High Court against the Full Bench decision of the same High Court refusing to quash the criminal proceedings taken against him. The appeal raises the questions of singular importance and consequence to Judges of the High Courts and this Apex Court. The central issue is whether the Judges could be prosecuted for offence under the Prevention of Corruption Act, 1947 (‘the Act’).

The background of the case in the barest outline is as follows:

The appellant started his life as an Advocate in the High Court of Madras. He joined the Madras Bar in 1941. In 1953 he was appointed as Assistant Government Pleader. In 1959 he became Government Pleader. He held that post till 20 February 1960 when he was elevated to the Bench as a perma- nent Judge of the Madras High Court. On 1 May 1969, he became the Chief Justice of the Madras High Court. During his tenure as the Judge and Chief Justice he was said to have acquired assets disproportionate to the known source of income. The complaint in this regard was made to the Delhi Special Police Establishment (“CBI”). On 24 February 1976, the CBI registered a case against him with issuance of a First Information Report which was filed in one of the Courts at New Delhi. It was alleged in the First Information Report that taking into consideration the sources of income of the appellant as a Judge and Chief Justice of the High Court and the mode and style of his living with the probable expenses required during the period of his Judgeship/Chief Justiceship, it is reasonably believed that the appellant cannot satisfactorily account  the possession of assets which are far disproportion he to his known source of income. It was further alleged that he has committed offences under Section 5(2) read with clauses
(b)(d) and (e) of Section 5(1) of the Act. On 28 February 1976, a copy of the First Information Report was personally taken by the Investigating Officer to Madras and it was filed before the Court of Special Judge, Madras. The appel- lant on coming to know of these developments proceeded on leave from 9 March 1976 and subsequently retired on 8 April 1976 on attaining the age of superannuation. The investigation of the case by CBI was however, continued with the culmination of filing a final report. On 15 December 1977, a final report under Section 173(2) of the Code of Criminal ‘Procedure (Cr. P.C.) was filed against the appellant before the Special Judge, Madras. The report under Section 173(2) is generally called as the charge sheet, and we would also prefer to term it as the charge sheet. The charge sheet inter alia states that the appellant after assuming. office as the Chief Justice of Madras gradually commenced accumulation of disproportionate assets etc. That for the period between 1 May 1969 to 24 February 1976, he was in possession of the pecuniary resources and property disproportionate by Rs.6.41,416.36 to the known sources of income over the same period. It was in his own name and in the names of his wife Smt. Eluthai Ammal and his two sons Shri V. Suresh and Shri V. Bhaskar. The appellant cannot satisfactorily account for such disproportionate assets. The appellant has thereby committed the offence of criminal misconduct under clause (e) of Section 5(1) which is punish- able under Section 5(2) of the Act. The particulars of the disproportionate assets and the income of the appellant during the aforesaid period have been fully set out in the charge sheet. On perusing the charge sheet the learned Special Judge appears to have issued process for appearance of the appellant but the appellant did not appear there. He moved the High Court of Madras under Section 482 of the Cr. P.C. to quash that criminal proceedings before the High Court he contended that the proceedings initiated against him were unconstitutional, wholly without jurisdiction, illegal and void. The Full Bench of the High Court by majority view has dismissed his case. However, in view of the importance of the Constitutional questions involved in the case the High Court granted certificate for appeal to this Court.

It may be noted that before the High Court every conceivable point was argued. They are various and varied. We may briefly refer to those contentions not for the pur- pose of examining them, since most of them have not been pressed before us, but only to indicate as to how the appel- lant projected his case. It was inter alia, contended that the Judges of the High Court and Supreme Court shall not be answerable before the ordinary criminal courts but only answerable to Parliament. The Parliament alone could deal with their misbehaviour under the provisions of Articles 124(4) and (5) read with Articles 217 and 218 of the Consti- tution. The Judge shall hold office until the age of super- annuation subject to earlier removal for proved misbehaviour or incapacity. This protection to Judges will be defeated if they are compelled to stand trial for offence committed while discharging duties of their office even before retire- ment. Even the Parliament or the State Legislatures are not competent to make laws creating offences in matters relating to discharge of Judge’s duties. Any such law would vitiate the scheme and the federal structure of the Constitution particularly the scheme of Article 124(4) read with Article 2 17 and 2 18. If the Legislatures are held to have powers to create offence for which Judges could be tried in ordi- nary criminal Courts then, it may affect the very independ- ence of the Judiciary and the basic structure of the Consti- tution. Though the definition of “public servant” under Section 21 of the Indian Penal Code may include a Judge of the Higher Judiciary, since the Judge is not ’employed in connection with the affairs of the Union or State’, the definition Should be narrowed down only to Judges other man the Judges of the Higher Judiciary.

The jurisdiction of the CBI to register the case against the appellant and to investigate the offence was also questioned. The issuance of the First Information RepOrt and the subsequent filing of the charge sheet were impeached. It was alleged that they were actuated by collat- eral considerations. Alternatively, it was claimed that even assuming that all the allegations against the appellant are true, it will not constitute an offence under clause (e) of Section 5(1) of the Act since ingredients of the offence are not present in the case. The last and perhaps the most important contention urged before the High Court was regarding the necessity to obtain prior sanction from the competent authority for prosecution of the appellant as required under Section 6 of the Act. And since there was no such sanction obtained the Court has no juris- diction to take cognizance of the case.

Mr. Justice Mohan, with whom Mr. Justice Natarajan, (as he then was) joined rejected all the contentions in a well considered judgment. The views expressed by Mohan, J., on all the issues except on the last one need not be set out here since all those issues have not been raised before us. On the last aspect relating to the requirement of prior sanction for prosecution of the appellant, the learned Judge, held that since the appellant has retired from serv- ice and was no longer a ‘public servant’ on the date of filing the charge sheet, the sanction for his prosecution required under Section 6 of the Act is not warranted. The third Judge Mr. Justice Balasubramanyan in a separate judg- ment has concurred with the majority views on most of the questions. He has however, differed on three points out of which one alone need be mentioned. The other two have not been supported before us by counsel for the appellant. The learned Judge has dealt with the ingredients of the offence under clause (e) of Section 5(1) with which the appellant was charged. While analysing ingredients of the offence, he went on to state that the gist of the offence is not the possession of assets merely. Nor even the sheer excess of assets over income, but the inability of the public servant in not being able to satisfactorily account for the excess. He observed that clause (e) of Section 5(1) of the Act places the burden of establishing unsatisfactory accounting squarely on the prosecution. In order to properly discharge this burden cast by the section, it Would be necessary for the Investigating Officer first of all to call upon the public servant to account for the disproportionate assets. He must then proceed to record his own finding on the expla- nation of the public servant. He must state whether it is satisfactory or not. And the offence complained of under clause (e) of Section 5(1) is not made out without such exercise and finding by the Investigating Officer. The learned Judge, however, was careful enough to modulate his reasoning so that it may be in conformity with the constitu- tional protection guaranteed to the accused under Article 20(3) of the Constitution, Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. The learned Judge said that in view of Article 20(3) the Investigating Officer has no power to compel the accused to give his explanation for his dispro- portionate assets, but he must necessarily ask the public servant for an account.

In this case. the accused-appellant has voluntarily submitted his statement of assets and income to the Investi- gating Officer in the course of investigation. Balasubraman- yan, J., however, seems to have ignored that statement and focussed his attention on the default of the Investigating Officer in not calling upon the appellant to account for the disproportionate assets.’ In that view, he held that the chargesheet could not be sustained and accordingly quashed the prosecution.
Before us, counsel for the appellant advanced only two propositions. The first concerns with the ingredients of the offence alleged and the requirements of the charge-sheet filed against the appellant. It also involves the duties of the Investigating Officer. In this regard counsel sought to support the views expressed by Balasubramanyan, J., in his dissenting judgment. The second proposition relates to the inapplicability of the Act to Judges of the High Courts and Supreme Court. The essence of the submissions made on this aspect is based on the special status and role of Judges of the higher judiciary and in the need to safeguard judicial independence consistent with the constitutional provisions. We will take up the second question first for considera- tion because. if it is determined in favour of the appel- lant, the first becomes academic and wc may conveniently leave it out. For a proper consideration of the submissions made by counsel on both sides the attention may be drawn to the relevant provisions of the Act.
Section 2 provides:
“2. For the purposes of this Act, “public servant” means a public servant as defined in Section 21 of the Indian Penal Code.”
Section 4 provides:
4. [(1)] Where in any trial of an of-
fence punishable under section 16 1 or section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of sub section (1) of section 5 of this Act punisha- ble under subsection (2) thereof), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that grati- fication or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punisha- ble under section 165A of the Indian Penal Code (or under clause (ii) of sub-section (3) of section 5 of this Act) it is proved that any gratification (other than legal remunera- tion) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or, as the case may be without consider- ation or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2) the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”
Two other provisions are more material namely section 5 and section 6 and must be set out in full.
Section 5 provides:
“5(1) A public servant is said to commit the offence of criminal misconduct-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other per-
son, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a con-
sideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be inter-
ested in or related to the person so con-
cerned, or
(c) if he dishonestly or fraudulent|y misap- propriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advan- tage (or)
(e) 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 income.
(2) Any public servant who commits criminal misconduct shall be punishable with imprison- ment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:
Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
(3) Whoever habitually commits-
(i) an offence punishable under section 162 or section 163 of the Indian Penal Code, or
(ii) an offence punishable under section 165 A of the Indian Penal Code, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine:
Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
(3A) Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
(3B) Where a sentence of fine is imposed under subsection (2) or sub-section (3), the court in fixing the amount of fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of subsection (1), the pecuniary resources or property referred to in that clause for which the accused person is unable to account satisfactorily.
(4) The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.
Section 6 is in the following terms:
“6. 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) (or sub- section 3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the (Union) and is not removable from his office save by or with the sanction of the Central Government (of the) State Government;
(b) 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 sanction of the Central Government (of the) State Government
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as re- quired under sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. It will be convenient, if at this stage, we also read Section Omitting the immaterial clauses, Section 5A is in these terms:
“5A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank -(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Po- lice;(c) in the presidency-towns of Bombay, of a Superintendent of Police; and(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, section 165 or section 165A of the Indian Penal Code or under section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest there- for without a warrant:Provided that if a police officer not below the rank of an Inspector of Police is autho- rised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presi-dency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant:Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.The Act was intended to suppress bribery and corruption in public administration and it contains stringent provi- sions. Section 4 raises presumption unless the contrary is proved by the accused in respect of offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of section 5(1) of the Act. Section 5 of the Act creates offence of criminal misconduct on the part of a public servant. The public servant defined under section 2 means a public serv- ant as defined in Section 21 of the IPC. Section 21 of the IPC is not really defining “public servant” but enumerating the categories of public servants. It has enumerated as many as twelve categories of public servants. Section 5(2) pro- vides punishment for such an offence of criminal misconduct up to a term of 7 years or with fine, or with both. Section 6 prohibits Courts from taking cognizance of an offence unless certain condition is complied with. We will have an occasion to consider the provisions of Section 6 in detail and for the present we may deal only with the condition prescribed by the Section for a Court to take cognizance of an offence The condition prescribed therein is the previous sanction of a competent authority. The public servant cannot be prosecuted for offences specified in the Section unless there is prior sanction for prosecution from the competent authority. It may be of importance to remember that the power to take cognizance of an offence is vested in the Court of competent jurisdiction. Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery. and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. 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 cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public serv- ants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.
Section 6 may now be analysed. Clause (a) of Section 6(1) covers public servants employed in connection with the affairs of the Union. The prescribed authority for giving prior sanction for such persons would be the Central Govern- ment. Clause (b) of Section 6(1) covers public servants employed in connection with the affairs of the State. The authority competent to give prior sanction for prosecution of such persons would be the State Government. Clauses (a) and (b) would thus 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 Central Government or the State Government. That is not the end. The Section goes further in clause (c) to cover the remaining categories of public servants. 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. Section 6 is thus all embracing bringing within its fold all the categories of public serv- ants as defined under Section 21 of the IPC.
It is common ground that clauses (a) and (b) of Section 6(1) of the Act cannot cover the Judges of the High Courts and the Supreme Court since they are not employed in connec- tion with the affairs of the Union or State. The question is whether they could be brought within the purview of clause
(c) of Section 6(1). Mr. Kapil Sibal learned Counsel for the appellant stressed the need to read clause (c) in “ejusdem generis” to clauses (a) and (b). According to him the entire Section 6 seems to apply only to such public servants where there is relationship of master and servant between, them and their employer.
If there is no relationship of master and servant, as be- tween public servant and the authority to appoint him, clause (c) has no application to the public servant. So far as the Judges of the High Courts and the Supreme Court are concerned, it was contended that there is no relationship of master and servant between them and the Government.and clause (c) of Section 6(1) is inapplicable to them. It is true that the relationship of master and servant as is ordinarily understood in common law does not exist between the Judges of higher judiciary and the Government. Where there is relationship of master and servant the master would be in commanding position. He has power over the employee not only to direct what work the servant is to do, but also the manner in which the work is to be done. The servant undertakes to serve the master and obey the reasona- ble orders within the scope of his duty. It is implicit in such relationship that the servant may disobey the master’s order only at his peril. But there is no such relationship between the Judges and their appointing authority that is, the Government. The Judges are not bound nor do they under- take 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. In Union of India v. S.H. Sheth, [1978] 1 SCR 423 at 450 Chandrachud, J., as he then was, has illu- mined this idea: “the Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to ‘uphold the Constitution and the laws’, ‘wit-hout fear’ that is without fear of the Executive; and ‘without favour’ that is without expecting a favour from the Executive. There is thus a fundamental distinction between the master and servant relationship between the Government and the Judges of High Courts and the Supreme Court.” But we cannot accept the contention urged for the appellant that clause (c) should be read in “ejusdem generis” to clauses (a) and (b) of Section 6(1) of the Act. 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 expression is to be read as com- prehending 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. (See Maxwell on The Interpretation of Statutes, 12th Ed. p. 297). What do we have here? Section 21 of the IPC while defining “public servant” has denoted as many as twelve categories of per- sons. It includes not only the State and Central Government employees but also others like Judge, juryman, assessor and arbitrator. It also includes every person in the service or pay of the Government or remunerated by fees or commis- sion by the Government. Each category is different from other and there is hardly any relationship of master and servant in some of the categories. The provisions of clauses
(a) and (b) of Section 6(1) of the Act covers certain cate- gories of public servants and the ‘other’ which means re- maining categories are brought within the scope of clause
(c). Clause (c) is independent of and separate from the preceding two clauses. The structure oil the section does not permit the applicability of the rule of ejusdem generis. There are, however, two requirements for the applicabil- ity of clause (c) of Section 6(1) to a Judge of the higher judiciary. First, the Judge must be a public servant. Sec- ond, there must be an authority competent to remove the Judge from his office. If these two requirements are com- plied with, a Judge cannot escape from the operation on the Act. On the first requirement there is little doubt and also not seriously disputed by counsel for the appellant. His approach however, is to limit the operation of clause (c) only to Judges of the Subordinate judiciary. But we do not find any sustainance in that approach. From the very com- mencement of the IPC “Every Judge” finds a place in the categories of “public servant” defined under Section 21 of IPC. It was specifically denoted in the third category of public servant under Section 21 of IPC.

In 1962, the Government of India constituted a Committee chaired by C.K. Santhanam, MP to suggest improvements in the provisions of the Act. Nine specific terms of references were made to the Committee. The Fourth term of reference made to the Committee reads: “to suggest changes in law which would ensure speedy trial of cases of bribery, corrup- tion and criminal misconduct, and make the law otherwise more effective.” The Committee collected a lot of material from the public relating to the nature of corruption in the administration. It was represented to the Committee by the public that corruption has increased to such an extent that people have started losing faith in the integrity of public administration. “We heard from all sides”, the Committee reported, “that corruption has, in recent years, spread even to those levels of administration from which it was conspic- uously absent in the past.” (See: Santhanam Committee Re- port, paras 2.12,2.15 and 2.16). The Committee submitted its report on 31st March 1964. While examining the Fourth term of reference extracted above, the Committee in Section 7 of its report considered the question of amendments to the IPC. The Committee drew particular attention to the definition of ‘public servant’ in Section 21 of the IPC. Under paragraph 7.6 of the Report, the Com- mittee has suggested that the present definition of ‘public servant’ under Section 21 of the IPC requires to be en- larged. It has stated, among others that ‘a further category should be added to include all persons discharging adjudica- tory functions under any Union or State Law for the time being in force.’ Under para 7.7, the Committee recommended that the third category under Section 21 of the IPC may be amended as stated below:
“Third-Every Judge including any person en- trusted with adjudicatory functions in the course of enforcement of any law for the time being in force.”This recommendation led to the enactment of Anti Corrup-tion Laws (Amendment) Act 1964 (Act No. 40 of 1964), The Parliament by passing this enactment has reenacted Section 21 with the third category as follows:
“21. ‘public servant’-The words ‘public serv- ant’ denote a person falling under any of the descriptions hereinafter following, namely; Third–Every Judge including any person empow- ered by; law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.”It will be seen that the Parliament has not only retained the expression “Every Judge” in the original enumeration of public servant under Section 21 of the IPC but also enlarged the expression to include any person empowered by law to discharge any adjudicatory functions. Reference may also be made to Section 19 of the IPC, in which “Judge” is defined. Section 19 reads:

“19. “Judge”-The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.”The expression “Every Judge” used in the third category of Section 21 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 comprehen- sive 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 be excluded from the definition of public servant. He squarely falls within the purview of the Act provided the second requirement under clause (c) of Section 6(1) is satisfied The second requirement for attracting the provisions of clause (c) of Section 6(1) to a Judge of the superior Judi- ciary is that for the purpose of granting sanction for his prosecution, there must be an authority and the authority must be competent to remove the Judge. It is now necessary to identify such authority in relation to the higher judici- ary. In our country, the Judges of higher Judiciary are safe and secure. They are high dignitaries and constitutional functionaries. They are appointed by the President in the exercise of his executive power but they are independent of the Executive. They hold office till they attain the age of superannuation. The High Court Judge retires at 62, while the Supreme Court Judge retires at 65. They are liable to be removed for proved misbehaviour or incapacity. The Executive is competent to appoint the Judges but not empowered to remove them. The power to remove them is vested in Parlia- ment by the process analogous to impeachment. The power is located under Article 124 of the Constitution. Article 124 provides, so far as material, as follows:

“124. Establishment and constitution of Supreme Court-XXXXX XXXXX XXXXX (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.(5) Parliament may by law regulate the proce- dure for the presentation of an address and for the investigation and proof of the misbe- haviour or incapacity of a Judge under clause (4).Article 2 18 provides that the provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court. In exercise of the power vested under clause (5) of Article 124, the Parliament has passed the Judges (Inquiry) Act, 1968 prescribing the procedure for presentation of an address and for the investigation and proof of misbehaviour or incapacity of a Judge. It will be useful to refer to the relevant provisions of the Judges (Inquiry) Act, 1968. Section 3(1) provides for giving notice of a motion for presenting an address to the President praying for the removal of a Judge, (a) in the case of a notice of motion given in the House of the People, it should be signed by not less than one hundred members of that House; (b) in the case of a notice given in the Council of States, it should be signed by not less than fifty mem- bers of that Council. The notice of motion should be given to the Speaker or, as the case may be, to the Chairman who may, after consulting such persons, as he thinks fit and after considering such materials, if any, as may be avail- able to him, either admit the motion or refuse to admit the same. Section 3(2) states that if the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall constitute a Committee for making an investigation into the grounds on which the removal of a Judge is prayed for. There shall be three members of the Committee; of whom one shall be chosen from among the Chief Justice and other Judges of the Supreme Court; one shall be chosen from among the Chief Justices of the High Courts and one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished ju- rist. The section further provides that the Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held and the Judge shall be given a reasonable opportunity of presenting a written statement of defence. There are Rules called the Judges (Inquiry) Rules, 1969 formed under the Judges (En- quiry) Act prescribing procedure for holding an inquiry against the Judge. Section 4(1) of the Judges (Inquiry) Act, 1968 states that at the conclusion of the investigation, the Committee shall submit its report to the Speaker or, as the case may be, to the Chairman, stating therein its findings ‘on each of the charges separately with such observations on the whole case as he thinks fit. The Speaker or the –
Chairman, as the case may be, shall cause that report to be laid before the House of People and the Council of States. Section 6 provides that if the report of Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, then, no further step be taken in either House of Parliament Section 6(2) states that if the report of the Committee contains a finding that the Judge is guilty of any misbeha- viour or suffers from any incapacity, then, each House of Parliament shall take further steps. The motion to present an address to the President together with the report of the Committee, shall be taken up for consideration by the House in which it is pending. That address praying for removal of the Judge must be adopted by each House of Parliament in accordance with the provisions of clause (4) of Article 124. Clause (4) of Article 124 provides that the address must be passed by each House of Parliament supported by a majority of the total membership of that House and by a majority ofi not less than two-thirds of the members of that House present and voting. Thereafter it shall be presented to the President for removal of the Judge. Incidentally, it may be mentioned that the same procedure has been made applicable for removal of the Comptroller and Auditor-General of India. (See clause (1) of Article 148 and for removal of the Chief Election Commissioner. (See clause (5) of Article 324 of the Constitution.

Counsel for the appellant while referring to the afore- mentioned provisions of the Constitution pointed out that the power to remove a Judge is not vested in any single individual or authority. No single person or authority is competent to take even cognizance of any allegation of misconduct of a Judge, or to take legal action for his removal. The power to remove a Judge is vested in the two Houses of Parliament and the President. The process and power are ‘both integrated in Parliament and Parliament alone is competent to remove a Judge. But Parliament, coun- sel contended, cannot be the sanctioning authority for the prosecution of a Judge. The grant of sancricrequires consid- eration of material collected by the investigation agency and Parliament cannot properly consider the material. Par- liament is wholly unsuitable to that work. It would be reasonable to presume that the Legislature while enacting clause (c) of Section 6(1) of the Act could not have intend- ed Parliament to be the sanctioning authority. The other authority cannot be involved to grant sanction for prosecu- tion of a Judge since it would be inconsistent with the provisions of the Act and the Constitutional requirements. Counsel asserted that it is necessary to exclude the Judges of the Supreme Court and of the High Courts from the operation of the Act. Mr. Tulsi, learned Additional Solicitor General, on the other hand, emphasised on the role of the President in relation to removal of a Judge. He pointed out that the order of the President for removal of a Judge is imperative under clause (4) of Article 124 of the Constitution and the President could be the proper authority under clause (c) of Section 6(1) of the Act.

Such, then, put quite shortly, were the contentions addressed to us on the authority competent to grant sanction for prosecution of Judges of the superior judiciary. We agree with counsel for the appellant that Parliament could not have been intended to be the sanctioning authority under clause (c) of Section 6(1). The composition of Parlia- ment consisting of the President and two Houses (Article 79) makes it unsuitable to the task. The nature of transacting business or proceeding in each House renders it impractica- ble. The individual Member of the House takes part in a proceeding usually by speech and voting; but the conduct of Judge in the discharge of his duties cannot be discussed. Article 121 provides “that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High’ Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinaf- ter provided.” The only exception made in the Constitution for discussion on the conduct of a Judge is when the motion is taken up for his removal. On no other occasion the con- duct of a Judge in the discharge of duties could be the subject matter of discussion in the two Houses of Parlia- ment. Without discussion, it would be difficult for Parlia- ment to make an objective judgment with regard to grant of sanction for prosecution. Parliament cannot therefore be the proper authority for granting sanction for the prosecution of a Judge.

That does not however, follow that the Judges of superi- or Courts are entitled to be excluded from the scope of the Act as contended for the appellant. That would be defeating the object of the Act. The Act was intended to cover all categories of public servants. The apparent policy of the legislation is to insure a clean public administration by weeding out corrupt officials. The Preamble of the Act indicates that the Act was intended to prevent more effec- tively the bribery and corruption by public servants. This Court has an occasion to examine the broad outlines of the Act. Imam. J., in S.A. Venkataraman v. The State, [1958] SCR 1040 while, analysing the provisions of the Act observed (at 1048): “that the provisions of the Act indicate that it was intention of the legislature to treat more severely than hitherto corruption on the part of a public servant and not to condone it in any manner whatsoev- er.” Reference may also be made to the observations of Subba Rao. J., as he then was, in M. Narayanan v. State of Kerala, [1963] 2 Suppl. SCR 724. The learned Judge said that the Act is a socially useful measure conceived in the public inter- est and it should be liberally constured. To quote his own words (at 729):
“The Preamble indicates that the Act was passed as it was expedient to make more effec- tive provisions for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public Servant. Bribery is a form of corruption. The fact that in addition to the word ‘bribery’ the word ‘corruption’ is used shows that the legislation was intended to combat also other evils in additon to bribery. The existing law. i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and cor- ruption corroding the public service of our country. The provisions broadly include the existing offences under ss. 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well-known principles of Criminal Juris- prudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.”In Craies on Statute Law. (6th ed. p. 531) it is stated that “the distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules ….. They are construed now with reference to the true meaning and real intention of the Legislature.” The construction which would promote the general legislative purpose underlying the provision in question, is to be preferred to a construction which would not. 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 literal meaning and adopt a liberal construction which effectuates the object of the legislature. Section 6, with which we are concerned indeed, requires to be liberally construed. It is not a penal provision but a measure of protection to public serv- ants in the penal enactment. It indicates the authorities without whose sanction a public servant cannot be prosecut- ed. It is sufficient that the authorities prescribed there- under fall within the fair sense of the language of the Section. The expression “the authority competent to remove” used in clause (c) of Section 6(1) is to be construed to mean also an authority without whose order or affirmation the public servant cannot be removed. In this view, the President can be considered as the authority to grant sanc- tion for prosecution of a Judge since the order of the President for the removal of a Judge is mandatory, The motion passed by each House of Parliament with the special procedure prescribed under clause (4) of Article 124 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. The importance of an order of the President for removal of a Judge could be seen by contrasting the provisions of clause (4) of Article 124 with the provisions for removal of the President, VicePresident and Speaker. Article 61 pro- vides procedure for removal of the President of India. Clause (4) of Article 61 reads as follows:

“61(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolu- tion is so passed.”Similar is the consequence of passing the resolution for removal of the Vice-President under Article 67 and the Speaker under Article 94 of the Constitution. Article 67(b) of the Constitution provides that the Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of People. Article 94(c) provides that the Speaker may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House. The resolution passed in accordance with the procedure prescribed under the respective provi- sions for removing the President, Vice-President and the Speaker, will ipso facto operate against those authorities. No further order from any other authority for their removal is necessary.

But that is not the position in the case of removal of a Judge. Clause (4) of Article 124 mandates that “a Judge shall not be removed from his office except by an order of the President passed after an address by each House of Parliament …” The clause (4) 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. It is said that Section 6 envisages that the authority competent to remove a public servant from the office should be vertically superior in the hierarchy in which the office exists. Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servants against whom sanction is sought from the sanctioning author- ity. Where the office held by the public servant is not a part of vertical hierarchy in which there is an authority above the public servant, then, Section 6 can have no appli- cation. We have been referred to the observations of Desai J., in R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183 at 206:
“That competent authority alone would know the nature and function discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority compete.. to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office.”With the utmost respect, we are unable to agree with the above observations. It seems to us that these observations were not intended to lay down the law that the authority competent to grant sanction for prosecution of public serv- ant should be vertically superior in the hierarchy in which the office of the public servant exists. That was not the issue in that case. The observations therefore, are not meant to be and ought not to be regarded as laying down the law. It has been said almost too frequently to require repetition that judgments are not to be read as statutes. In our opinion, it is not necessary that the authority compe- tent 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 Section,

6. The power to give sanction for prosecution can be con- ferred on any authority. Such authority may be of the de- partment in which the public servant is working or an out- side authority. All that is required is that the authority must be in a position to appreciate the material collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative Under our enact- ment the power has been conferred on the authority competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prose- cution for an offence under that Act has been conferred upon the Attorney General or Solicitor General. The President is not an outsider so far judiciary is concerned. The President appoints the Judges of the High Courts and the Supreme Court in exercise of his executive powers. Clause (1) of Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge Other than the Chief Justice, the Chief Justice of the High Court. Similarly the President appoints the Judges of the Supreme Court. Clause (2) of Article 124 provides that every Judge of the Supreme Court shah be appointed by the Presi- dent in consultation with such of the Judges of the supreme Court and of the High Courts as the President may deem necessary for the purpose and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of/India shall always be consulted. The President exercises this power with the aid and advice of his Council of Minis- ters under Article 74 of the Constitution. Shamsher Singh v. State of Punjab, [ 1975] 1 SCR 8 14 and S.P. Gupta v. Union of India, [1982] 2 SCR 365. Parliament has no part to play in the matter of appointment of Judges except that the Executive is responsible to the Parliament.

In the event of President regarded as the authority competent to give prior sanction for the prosecution of a Judge, counsel for the appellant contended, that the Presi- dent cannot act independently. The President exercises his powers by and with the advice of his Council of Ministers. The Executive may misuse the power by interfering with the judiciary. The Court shall avoid interpretation which is likely to impair the independence of the judiciary. Counsel urged that a separate Parliamentary law to deal with the criminal misconduct of Judges of superior courts consistent with the constitutional scheme for their removal could be enacted and such a legislation alone would ensure judicial independence and not the present enactment. A suggestion was also made that since ‘misbehaviour’ under clause (4) of Article 124 of the Constitution and ‘criminal misconduct’ under Section 5(1)of the Act being synonymous, the constitu- tional process for removal of the Judge must be gone through first and only after his removal the prosecution if need be recommended in the same process. Otherwise, it is said that it would lead to anomaly since there is no power either in the Constitution or under any other enactment to suspend the Judge or refuse to assign work to the Judge pending his trial or conviction in the Criminal Court and the Judge can insist on his right to continue till his removal even after his conviction and sentence.
It is inappropriate to state that conviction and sen- tence are no bar for the Judge to sit in the Court. We may make it clear that if a Judge is convicted for the offence of criminal misconduct or any other offence involving moral turpitude, it is but proper for him to keep himself away from the Court. He must voluntarily withdraw from judicial work and await the outcome of the criminal prosecution. If he is sentenced in a criminal case he should forthwith tender his resignation unless he obtains stay of his convic- tion and sentence. He shall not insist on his right to sit on the Bench till he is cleared from the charge by a Court of competent jurisdiction. The judiciary has no power of the purse or the sword. It survives only by public confidence and it iS important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial inde- pendence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and admin- istration.

The emphasis on this point should not appear superflu- ous Prof. Jackson says “Misbehaviour by a Judge, whether it takes place on the bench or off the bench, undermines public confidence in the administration of justice, and also dam- ages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This must be so when the judge commits a serious criminal offence and remains in office”. (Jackson’s Machinery of Justice by J.R. Spencer 8th ed. p.p. 369-370) 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 section S(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament as suggested by counsel for the appellant. One is the power of Parliament and the other is the jurisdiction of a Criminal Court. Both are mutually exclusive. “Even a Government servant who is answerable for his misconduct which may also constitute an offence under the IPC or under Section 5 of the Act is liable to be prose- cuted in addition to a departmental enquiry. If prosecuted in a criminal court he may be punished by way of imprison- ment or fine or with both but in departmental enquiry, the highest penalty that could be imposed on him is dismissal. The competent authority may either allow the prosecution to go on in a Court of law or subject him to a departmental enquiry or subject him to both concurrently or consecutive- ly. 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.

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. That has been provided under Section 1 of the Judicial Officers Protection Act, 1850. Likewise, Section 77 IPC gives them protection from criminal liability for an act performed judicially. Section 77 states that ?nothing is an offence which is 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”. A discussion on the conduct of Judges of the High Courts and the SUpreme Court in the discharge of their duties shall not take place in the State Legislatures or in Parliament (Articles 12 1 and 211). The High Courts and the Supreme Court have been constituted as Courts of record with the power to punish anybody for committing contempt. (Articles 129 and 215). The Contempt of Courts Act, 1971 (Act 7-0-71) provides power to the Court to take civil and criminal contempt proceedings.

But we know of no law providing protection for Judges from Criminal prosecution. Article 361(2) confers immunity from criminal prosecution only to the President and Governors of States and to no others. Even that immunity has been limited during their term of office. 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 crimi- nal prosecution is required.
The position in other countries seems to be not differ- ent. In the book “Judicial Independence–The Contemporary Debate” by S. Shetreet and J. Deschenes ‘(1985 ed.) -there is an article titled as “Who watches the Watchman” by Mauro Cappelletti. The author has surveyed the penal liability of judges in the legal systems of some of the countries. The author states. In a number of national systems one can also find the provision of criminal sanctions for certain acts or omissions that are typical only of the administration of Justice, such as deni de justice, or wilful abuse of the judicial office. Even crimes which are of more general application, such as the taking of bribes, might well be sanctioned differently–but possibly more severely–when they refer” to judicial officers. In other countries, howev- er, such as Poland, Greece and Italy, a different approach prevails. There is no criminal sanction which is specifical- ly applicable only to judicial behaviour; rather, the judges are included in those criminal provisions which apply gener- ally to public servants, such as provisions concerning corruption, omission or refusal to perform activities of office, vexation, etc.”
If we take the early English law it will be seen that the corruption on the part of a Judge was the most reprehen- sible crime and punishable as high treason. Even Lord Becon, the most gifted mind of the English Renaissance, acclaimed philosopher and the best legal brain was not spared from the punishment for accepting bribes. He was fined forty thousand pounds, a monumental sum, and imprisoned in the Tower during the King’s pleasure.” He was also barred forever from hold- ing any office in the “State or Commonwealth” or from sit- ting in Parliament, or from coming “within the verge of the Court.” King James however, liberated him from prison, remitted his fine, and pardon him fully (The Corrupt Judge by Joseph Borkin 1962 ed. p. 3, 4.& 17).
There is however, apprehension that the Executive being the largest litigant is likely to misuse the power to prose- cute the Judges.

That apprehension in our over-litigious society seems to be not unjustified or unfounded. The Act no doubt provides certain safeguards. Section 6 providing for prior sanction from the competent authority and directing that no court shall take cognizance of the offence under Section 5(1) without such prior sanction is indeed a protection for Judges from frivolous and malicious prosecution. It is a settled law that the authority entitled to grant sanction must apply its mind to the facts of the case and all the evidence collected before forming an opinion whether to grant sanction or not. Secondly, the trial is 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 dicious use of taking action under the Act. Care should be taken that nonest and fearless judges are not harassed. They should be protected. In the instant case the then Chief Justice of India was requested to give his opinion whether the appellant could be proceeded under the Act. It was only after the Chief Justice expressed his views that the appellant could be proceeded under the provi- sions of the Act, the case was registered against him. Mr. Tulsi, learned Additional Solicitor General submitted that he has no objection for this Court for issuing a direction against the Government of India to follow that procedure in every case. But Counsel for the appellant has reservations. He maintained that it would be for the State to come forward with u separate enactment for the Judges consistent with the Constitutional provisions for safeguarding the independence of the judiciary and not for this Court to improve upon the defective law. In our opinion, there is no need for a sepa- rate legislation for the Judges. The Act is not basically defective in its application 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 independence of the judiciary will not deny itself the opportunity to lay down such guidelines. We must never forget that this Court is not a Court of limited jurisdiction of only dispute settling. Almost from the beginning, this Court has been a law maker, albeit, in Holmes’s expression. ‘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 prob- lem solver in the nebulous areas. In this case, we consider it no were opportunity: it is a duty. It is our responsibil- ity and duty to apply the existing law in a form more condu- cive to the independence of the Judiciary.
The Chief Justice of India is a participatory functionary in the matter of appointment of Judges of the Supreme Court and the High Courts. (Articles 124(2) and 2 17(1).) Even for trans- fer of a Judge from one High Court to another the Chief Justice should be consulted by the President of India (Article 222). If any questionarises as to the age of a Judge of a High Court,the question shall be decided by the President after consultation with the Chief Justice of India (Article 217(3)). Secondly, the Chief Justice 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 kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion. We therefore, direct that no criminal case shall be registered under Section 154, Cr. P. C. against Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be regis- tered. 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. There shall be similar consul- tation 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. Accordingly the directions shall go to the Government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose.
For the reasons which we have endeavoured to outline and subject to the directions issued, we hold that for the purpose of clause (c) of Section 6(1) of the Act the Presi- dent of India is the authority competent to give previous sanction for the prosecution of a Judge of the Supreme Court and of the High Court.

It remains only to deal with one short point in this part of the discussion. The High Court has expressed the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the serv- ice on attaining the age of superannuation and was not a public servant on the date of filing the chargesheet. The view taken by the High Court appears to be unassailable. The scope of Section 6 was first considered by this Court in S.A. Venkatararnan’s case, where it was observed (at 1048) that Section 6 of the Act must be considered with reference to the words used in the section independent of any construction which may have been placed by the decisions on the words used in Section 197 of the Cr. P.C. The Court after analysing the terms of Section further observed (at 1049) that “there is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take_ cognizance, although he had been such a person at the time the offence was committed.” This view has been followed in C.R. Bansi v. State of Maha- rashtra, [1971] 3 SCR 236 and also in K.S. Dharmadatan v. Central Government & Ors., [1979] 3 SCR 832 and finally reiterated in a Constitution Bench decision in R.S. Nayak & Ors. v.A.R. Antulay, 1984] 2 SCC 183. The question is, therefore, no longer res integra.
This brings us to the end of the second question and takes us on to the first question. Among the substantive points raised for the. appellant, the first question relates to the nature of the offence created under clause (e) of Section 5(1). The second, allied question, is as to the invalidity of the charge-sheet filed in the instant case in as such as it failed to incorporate the essential ingredient of the offence. It was urged that the public servant is entitled to an opportunity to explain the disproportionality between the assets and the known sources of income. This opportunity should be given to the public servant by the Investigating Officer and the charge sheet must contain a statement to that effect, that is, to the unsatisfactory way of accounting by the public servant. Unless the charge sheet contains such an averment, counsel contended that under law an offence under clause (e) of Section 5(1) of the Act is not made out.
For a proper consideration of the contentions, we may have the pre-natal history of clause (e) of Section 5(1). Section 5(1) of the Act, as originally stood, provides in the four clauses (a), (b), (c) and (d) the acts or the omissions of which public servant is said to have committed an offence of criminal misconduct in the discharge of his duties. All these provisions are still there except the term ‘in the discharge of his duties’. There then followed, Section 5(3) which was in these terms:
” In any trial of an offence pun-ishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.” ‘ This Section 5(3) does not create a new offence but only provides an additional mode of proving an offence punishable under Section 5(2) for which any accused person was being tried. It enables the Court to raise a presumption of guilt of the accused in certain circumstances. This additional mode is by proving the extent of the pecuniary resources or property in the possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income. If these facts are proved the section makes it obligatory for the Court to presume that the accused person is guilty of crimi- nal misconduct in the discharge of his official duty, unless the contrary is proved by the accused that he is not so guilty. The Section 5(3) further provides that the convic- tion for an offence of criminal misconduct shall not be invalid by reason that it is based solely on such presump- tion. (See: (i) C.S.D. Swamy v. The State, [1960] 1 SCR 461;
(ii) Surajpal Singh v. The State of U.P., [961] 2 SCR 97 1, and (iii) Sajjan Singh v. The State of Punjab, [1964] 4 SCR
630. In 1962, as earlier explained, Santhanam Committee on ‘Prevention of Corruption’ was constituted to review, among other things, the law relating to corruption, to ensure speedy trial of cases of bribery and criminal misconduct and to make the law otherwise more effective. The Committee in its report has, inter alia recommended the inclusion of clause (e) of Section 5(1) as a substantive offence in the Act. The Government accepted that recommendation and to give effect to that recommendation, enacted clause (e) of Section 5(1) replacing Section 5(3) of the Act. The Statement of Objects and Reasons accompanying the Bill leading to the enactment of ‘The AntiCorruption Laws (Amendment) Act, 1964 (Act No. 40 of 1964) by which clause (e) of Section 5(1) was introduced into the Act reads:
The Committee has recommended a number of important amendments to the Preven- tion of Corruption Act, 1947. It has suggested that the presumption enunciated in sub-section (1) and (2) of Section 4 of the Act should be made available also in respect of offences under Section 5 and possession of disproportionate assets should be made a substantive offence.”(Emphasis supplied) For immediate reference, clause (e) of Section 5(1) is reproduced hereunder:
” 5(1)(e) 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 income”.The terms of clause (e) indicates that the principle underlying section 5(3) appears to have been elevated to a substantive offence in somewhat different words. We will presently analyse the ingredients of the offence under clause (e), but before that, two decisions of this Court on the scope of clause (e) may be referred. In Maharashtra v. K.K.S. Ramaswamy, [1978] 1 SCR 274, Shinghal, J., said (at
276) that the result of the enactment of clause (e) is that mere possession of pecuniary resources or property dispro- portionate to the known sources of income of a public serv- ant, for which he could not satisfactorily account, became an offence by itself although Section 5(3) which existed prior to Section 5(1)(e) did not constitute an offence. In State of Maharashtra v. Wasudeo Ramachandra Kaidal- war, [1981] 3 SCR 675, Sen, J., spelled out succintly the insight of clause (e) of Section 5(1) (at pp. 682 to 684):
“The terms and expressions appearing in s. 5(1)(e) of the Act are the same as those used in the old section 5(3). Although the two provisions operate in two different fields, the meaning to be assigned to them must be the same. The expression “known sources of income” means “sources known to the prosecution”. So also the same meaning must be given to the words “for which the public servant is unable to satisfactorily account” occurring in s. 5(1)(e). No doubt s. 4(1) provides for pre- sumption of guilt in cases falling under ss. 5(1)(a) and (b), but there was, in our opin- ion, no need to mention s. 5(1)(a) therein. For the reason is obvious. The provision contained in s. 5(1)(e) of the Act is a self- contained provision. The first part of the Section casts a burden on the prosecution and the second on the accused. When s. 5(1)(e) uses the words “for which the public servant is unable to satisfactorily account”, it is implied that the burden is on such public servant to ac- count for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having dispropor- tionate assets in the possession for which he cannot satisfactorily account, cannot be convicted of an offence under s. 5(2) read with s. 5(1)(e) of the Act unless the prosecu- tion disproves all possible sources of income.”On the burden of proof under Section 5(1)(e) of the Act, learned Judge said:
“The expression “burden of proof” has two distinct meanings; (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidentia1 burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Not,/withstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain c fences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is dis- charged by proof of a balance of probabili- ties.”As to the ingredients of the offence, learned Judge contin- ued:
“The ingredients of the offence of criminal misconduct under s. 5(2) read with s. 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the follow- ing facts before it can bring a case under s. 5(1)(e), namely, (1)it must establish that the accused is a public servant, (2) the nature and extend of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the, prosecution, and (4) it must prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are estab- lished, the offence of criminal misconduct under s. 5(1)(e) is complete, unless the accused is able to account for such resources or proper” The burden then shifts to the accused to satisfaction. account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in posses- sion of disproportionate assets under s. 5(1)(c) cannot be higher than the test laid by the Court in Jahgan’s case (supra), i.e. to establish his case by a preponderance of probability. That test was laid down by the Court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public prosecutions.”The soundness of the reasoning in Wasudeo Ramachandra Kaidalwar case (supra) has been doubted. Counsel for the appellant urged that the view taken on Section 5(3) cannot be imported to clause (e) of Section 5(1) and the decision, therefore, requires reconsideration. But we do not think that the decision requires reconsideration. It is signifi- cant to note that there is useful parallel found in Section 5(3) and clause (e) of Section 5(1). Clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The Section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionali- ty of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The Legislature has advisedly used the expression “satisfactorily account”. The emphasis must be on the word “satisfactorily”. That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a pursuasive burden. The ac- cused however, could discharge that burden of proof “on the balance of probabilities” either from the evidence of the prosecution and/or evidence from the defence. This procedure may be contrary to the well known principle of criminal jurisprudence laid down in Woolmington v. Director of Public Prosecution, [1935] A.C. 462 that the burden-of proof is always on the prosecution and never shifts to the accused person. But Parliament is competent to place the burden on certain aspects on the accused as well and partic- ularly in matters “specially within his knowledge”. (Section 106 of the Evidence Act). Adroitly, as observed in Swamy case (at 469) and reiterated in Wasudeo case (at 683), the prosecution cannot, in the very nature of things, be expect- ed to know the affairs of a public servant found in posses- sion 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 unrea- sonable, unjust or unfair. Nor it can be regarded as con- trary to Article 21 of the Constitution as contended for the appellant. It may be noted that the principle re-affirmed in Woolmington case is not a universal rule to be followed in every case. The principle is applied in the absence of statutory provision to the contrary. (See the observations of Lord Templeman and Lord Griffiths in Rig. v. Hunt, [1986] 3 WLR 1115 at 1118 and 1129).
Counsel for the appellant however, submitted that there is no law prohibiting a public servant having in his posses- sion assets disproportionate to his known sources of income and such possession becomes an offence of criminal miscon- duct only when the accused is unable to account for it. Counsel seems to be focussing too much only on one part of clause (e) of Section 5(1). The first part of clause (e) of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income the offence of criminal miscon- duct is attributed to the public servant. However, it is open to the public servant to satisfactorily account for such disproportionality of assets. But that is not the same thing to state that there is no offence till the public servant is able to account for the excess of assets. If one possesses assets beyond his legitimate means, it goes with- out saying that the excess is out of illgotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. That is the substance of clause (e) of Section 5(1).
In the view that we have taken as to the nature of the offence created under clause (e), it may not be necessary to examine the contention relating to ingredient of the of- fence. But since the legality of the charge sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression “for which he account satisfactorily account” used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged dispropor- tionality between assets and the known sources of income. The Investigating Officer is required to consider his expla- nation and the charge sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge sheet and renders it invalid. This sub- mission, if we may say so, completely overlooks the powers of the Investigating Officer. 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 investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the investi- gating Officer must give an opportunity to the accused and call upon idm 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 the Investigating Officer to the position of an enquiry officer or a judge. The investigating officer is not holding an enquiry against the conduct of the public servant or deter- mining the disputed issues regarding 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 charge sheet.
The charge sheet is nothing but a final report of police officer under Section 173(2) of the Cr. P.C. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been. forwarded in custody under Sec.
170. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar, [1980] 3 SCC 152 at 157; that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magis- trate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of wit- nesses as required by Section 175(5). 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 stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case “adducing acceptable evidence.
In the instant case, the charge sheet contains all the requirements of Section 173(2). It states that the investi- gation shows that between 1 May 1969 and 24 February 1976 the appellant as the Chief Justice of the High Court of Madras was in possession of the pecuniary resources and property in his own name and in the name of his wife and two sons etc., which were disproportionate by Rs.6,41,416.36 to the known sources of income over the same period and cannot satisfactorily account for such disproportionate pecuniary resources and property. The details of properties and pecu- niary resources of the appellant also have been set out in clear terms. No. more, in our opinion, is required to be stated in the charge sheet. It is fully in accordance with the terms of Section 173(2) Cr. P.C. and clause (e) of Section 5(1) of the Act.
For the foregoing reasons, we dismiss the appeal and direct the trial court to proceed with the case expeditious- ly.
Before parting with the case, we may say a word more. This case has given us much concern. We gave our fullest consideration to the questions raised. We have examined and re-examined the questions before reaching the conclusion. We consider that 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 dis-
honours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.
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. “A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion” to preserve the impartiality and independence of the judiciary. and to have the public confi- dence thereof.


SHARMA, J. I have gone through the learned judgments of Mr. Justice Ray, Mr. Justice Shetty and Mr. Justice Verma. I agree with Mr. Justice Ray and Mr. Justice Shetty that the appeal should be dismissed. In view of the elaborate discus- sion of the facts and law in the judgments of my learned brothers, I am refraining from dealing with them in detail, and am indicating my reasons briefly.
2. The expression “public servant” used in the Preven- tion of Corruption Act, 1947 (hereinafter referred to as the ‘Act’) is undoubtedly wide enough to denote every judge, including Judges of the High Court and the Supreme Court. The argument is that in view of the language of the Act considered along with the provisions of the Constitution especially Article 124, Section 5 of the Act must be held to be inapplicable to the High Court and Supreme Court Judges. It has not, however, been suggested, and rightly, that the Parliament lacks jurisdiction in passing a law for trial and conviction of High Court and Supreme Court Judges in cases where they are guilty of committing criminal offences. The contention is that in view of the scheme of the Act it should be inferred that the penal provisions of the Act do not apply to them. Great reliance has been placed on Section 6, requiring previous sanction of the authority competent to remove the Judge’ from the office as a necessary condition for taking cognizance. It has been urged that in view of this essential requirement it has to be held that the Act does not cover the case of a member of the higher judiciary while in office and consequently it cannot be made applica- ble to him even after his retirement. For the purpose of this argument it is presumed that there is no authority competent to remove a High Court Judge from his office within the meaning of Section 6, and the condition precedent for starting a prosecution against him, therefore, cannot be satisfied. I do not think this basic assumption is correct.
3. Section 6(1)(c) of the Act speaks of the “authority competent to remove him from his office”. The question is as to whether there is some “authority competent” to remove a High Court Judge from his office or not. An answer in the negative will be inconsistent with Article 124 Clauses 4 and 5 read with Article 2 18 of the Constitution. It is signifi- cant to note that Article 124(4) speaks of “removal from his office”, and Section 6 of the Act uses similar language. The removal of a Judge does not take .place automatically on commission or omission of a particular act or acts or on fulfilment of certain prescribed conditions. It is dependant on certain steps to be taken as mentioned)in the Article through human agency. Initially some members 9f the Parlia- ment have to move in the matter and finally an order has to be passed by the President. Thus 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. As to who is precisely the authority in this regard is a matter which, in my view, does not arise in the present case, but the vital question whether such an authority exists at all must be answered in the affirmative.
4. It has been strenuously contended by Mr. Sibal, learned counsel for the appellant, that the Constitution envisages an independent judiciary, and to achieve this goal it is essential that the other limbs of the State including the executive and the lagislature should be denied a posi- tion from where the judiciary can be pressurized.
5. The State is an organisation committed to public good; it is not an end in itself. Its different branches including the legislature, judiciary and the executive are intended to perform different assigned important functions. Judiciary has a duty to dispense justice between person and person as also between person and State itself. To be able to perform its duties effectively the Judges have to act “without fear or favour, affection or ill will”. They must, therefore, be free from pressure from any quarter. Nobody can deny this basic essence of independence of judiciary. But for the judiciary to be really effective, the purity in the administration of justice and the confidence of the people in the courts are equally essential. It is to achieve this end that the higher judiciary has been vested with the power to punish for its own contempt. This has become neces- sary so that an aggrieved or misdirected person may not cast aspersions on the court which may adversely affect the public confidence. If the community loses its faith in the courts, their very existence will cease to have any meaning. A person with a just cause shall not approach the court for a legal remedy, if according to his belief the decision of the court would be given on extreneous consideration and not on the merits of his claim. People will return to the law of the jungle for settling their dispute on the streets. These aspects are common for the entire judiciary, whether Higher or Subordinate, and to my mind no classification is permis- sible separating one category from another.
6. Although the Judges of the higher judiciary perform important functions and are vested with special jurisdic- tion, at cannot be forgotten that judicial power, wherever it is vested, is integral and basic for a democratic consti- tution. A large number of cases are finally decided at the stage of the subordinate judiciary. The subordinate judici- ary, therefore, also needs the same independence which is essential for the higher judiciary. It is, therefore, not safe to assume that the Act intended to make in its applica- tion any discrimination between the lower and the higher judiciary. Protection to the public servant in general is provided under Article 311 and the interest of the subordi- nate judiciary is further taken care of by the High Court, and this along with the provisions regarding previous sanc- tion shields them from unjustified prosecution. Similarly protection is available to the High Court and Supreme Court Judges through the provisions of Article 124(4) and (5) 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. There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prosecution while in identical circum- stances a member of the subordinate judiciary is tried and convicted. Such an interpretation of the Act will militate against its constitutional validity and should not, there- fore, be preferred.
7. There is still another reason indicating that the interpretation suggested on behalf of the appellant should not be accepted. If it is held that a member of the higher judiciary is not liable to prosecution for an offence under Section 5 on account of the requirement of previous sanction under Section 6, it will follow that he will be immune from’ the prosecution not only under Section 5(1)(e) as is the present case, but also for the other offences under Clauses
(a) to (d). So far offences punishable under Sections 161, 164 and 165 of the Indian Penal Code are concerned they are also subject to such-previous sanction. The result will be serious. It is a well established principle that no person is above the law and even a constitutional amendment as contained in Article 329 A in the case of the Prime Minister was struck down in 1976 (2) SCR 347 at 470 C-D. It has to be remembered that in a proceeding under Article 124 a Judge can merely be removed from his office. He cannot be convicted and pun- ished. Let us take a case where there is a positive finding recorded in such a proceeding that the Judge was habitually accepting bribe, and on that ground he is removed from his office. On the argument of Mr. Sibal, the matter will have to be closed with his removal and he will escape the crimi- nal liability and even the ill gotten money would not be confiscated. Let us consider another situation where an abetter is found guilty under Section 165 A of the Indian Penal Code and is convicted. The main -culprit, the Judge shall escape on the argument of the appellant. In a civi- lised society the law cannot be assumed to be leading to such disturbing results.
8. In adopting the other view I do not see any difficul- ty created either by the scheme or the language of the Act or by any constitutional provision. The statement in Santha- nam Committee’s report that the members did not consider judiciary to be included in the terms of the reference, is not of much help as admittedly the Act applies to the mem- bers of the subordinate judiciary. Nor can the rules relat- ing to disclosure by some Govt. servants of their assets and liabilities determine the scope of the law. These rules differ from place to place and are amended from time to time according to the changing exigencies. As has been stated earlier, 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 124. It is, therefore, not right to say that previous sanction for his prosecution cannot be made available. Section 2 of the Act adopts the definition of “public servant” as given in Section 21 of the Indian Penal Code, which includes “Every Judge”. If the legislature had intended to exclude the High Court and Supreme Court Judges from the field of Section 5 of the Act, it could have said so in unambiguous terms instead of adopting the wide meaning of the expression “public servant” as given in the Indian Penal Code.
9. The further question as to the identity of the authority empowered to grant the necessary sanction as mentioned in Section 6 of the Act was hotly debated during the hearing of the case. Mr. Justice Shetty has held that since ultimately it is the order of the President which is necessary for the removal of a Judge, he must be treated to be the competent authority. Taking into consideration the independence of judiciary as envisaged by the Constitution, it has further been observed that the Chief Justice of India will have to be consulted in the matter and steps would have to be taken in accordance with his advice. Mr. Justice Ray and Mr. Justice Venkatchaliah are in agreement with this view. These obser- vations, I believe, would be not only acceptable, but wel- come to the Union of India, as during the hearing it was at the suggestion of the learned Solicitor General and the Additional Solicitor General, that the desirability of the aforesaid direction in the judgment was considered by the Bench. I also fully appreciate that if the executive follows this rule strictly, a further protection from harassment of the judges by uncalled for and unjustified criminal prosecu- tion shall be available. But in my view such a binding direction cannot be issued by this Court on the basis of the provisions of the Constitution and the Act.
10. Before proceeding further 1 would again state that having answered the question as to whether a Judge of the superior court can be removed by some authority whoever he or they may be, in the affirmative, it is not necessary to decide the further controversy as mentioned above. I would, therefore, be content merely by indicating some of the aspects which may be relevant for the issue, to be decided later in a case when it directly arises.
11. 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. Realising the serious implica- tion it was suggested on behalf of the Union of India that this Court may lay down suitable conditions by way of prior approval of the Chief Justice of India for launching a prosecution. I fully appreciate the concern of all of us including the Union of India for arriving at a satisfactory solution of the different problems which are arising, but if we start supplementing the law as it stands now, we will be encroaching upon the legislative field. To meet this objec- tion it was contended that it is permissible for us to issue the suggested direction because the Chief Justice of India is not a stranger in the matter of appointment of a Judge of the High Court or the Supreme Court; rather he is very much in the picture. Reference was made to the provisions of Articles 124-(2) and 2 17(1). The difficulty in accepting this argument is that the Governor of the State and the Chief Justice of the High Court are as much involved in the matter of appointment of a Judge of the High Court as the Chief Justice of India. We cannot, therefore, simplify the problem by referring to the aforesaid Articles. In my view the approval of Chief Justice of India can be introduced as a condition for prosecution only by the Parliament and not by this Court.
12. The question, then, is as to what is the protection available under the law as it exists today, to the independ- ence of the judiciary of the country. The answer is in Section 6 of the Act, which by providing for previous sanc- tion of the authority empowered to remove the Judge, takes us to Article 124, Clauses (4) and (5). Since the Constitu- tion 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 prose- cution also, in view of the Parliament enacting Section 6 of the Act in the language which attracts the constitutional provisions.
13. It has been argued that in view of the constitution- al prohibition against any discussion in Parliament with respect to the conduct of a Judge of the superior court, except in connection with his removal under Article 124, it will not be possible to obtain the necessary sanction as mentioned in Section 6 of the Act, except by initiating a motion for removal also simultaneously; and then, it will be a time consuming process. I will assume the contention to be correct, but for that reason I do not think that the correct interpretation of the legal position can be discorrected, as it does not lead to any illegal consequence, untenable position or an absurd result. It is true that the grant of sanction will be delayed 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 combin- ing the two matters–that is the removal and the grant of sanction–which are obviously intertwined. It has to be remembered that the prosecution under Section 5(1) of the Act refers to collection by the Judge of disproportionately large amount of wealth during the period he has been in office. The two matters–the prosecution and removal–should not, therefore, be treated to be separate and unconnected with each other. Otherwise, there will be scope left for the Judge concerned to claim that although he may be facing prosecution or may have been even convicted after trial, he still continues to be a Judge entitled to exercise his powers, as he has not been removed from his office. It was stated during the course of the hearing that actually such a situation has arisen in another country where a Judge al- though punished with imprisonment was insisting that he still continued in his office. I do not think that such a thing is permissible in this country. The anomaly involved in such situations can be satisfactorily resolved by combining the two matters and getting clearance from the Parliament. Before closing this chapter I would again repeat that this issue is not arising in the present case and will have to be considered and finally decided only when it directly arises. Since, however, opinions have been expressed. which I regret I do not find myself in a position to share. I have, with great- est respect of my learned brothers, taken the liberty to state some important considerations, which appear to be relevant to me.
14. Mr. Sibal next contended that as the appellant was not called upon to account for the property which was found in his possession, one of the essential ingredients under Section 5(1)(e) is not satisfied. There is no merit whatso- ever in this point either. The section does not contemplate a notice to be served on the accused. If the prosecuting at hority after making a suitable enquiry, by taking into account the relevant documents and questioning relevant persons, forms the opinion that the accused cannot satisfac- torily account the accumulation of disproportionate wealth in his possession the section is attracted. The records clearly indicate that after duly taking all the appropriate steps it was stated that the assets found in the possession of the appellant in his own name and in the name of his wife and two sons, were disproportionate by a sum of over Rs.6 lacs to his known sources of income during the relevant period and which he “cannot satisfactorily account”.
15. Since I do not find any merit in any of the points urged on behalf of the appellant this appeal is dismissed.


VERMA, J. I have perused the opinions of my learned brethren constituting the majority taking the view that the Prevention of Corruption Act applies. I am unable to sub- scribe to this view. My dissenting opinion is at best only academic. All the same I deem it fit to record the same with my reasons for taking a different view. It is indeed unfor- tunate that this question should at all arise for judicial determination. However, the question having arisen we are bound to give our opinion. In view of the significance of the point, I record my respectful dissent reassured by the observations of Hughes that ‘unanimity which is merely formal, which is recorded at the expense of strong, con- flicting views, is not desirable in a court of last resort, whatever may be the effect on public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges …… It is better that their independence should be maintained and recognised than that unanimity should be secured through its sacrifice. I would rather b.e a conscientious lone dissenter than a troubled conformist. It is in this spirit, in all humility, I record my dissent.

Can the Chief Justice of a High Court or any of its puisne Judges be prosecuted for an offence punishable under the Prevention of Corruption Act, 1947 (hereinafter referred to as ‘the Act’)? This is the main question arising for decision in this appeal. The appellant, K. Veeraswami, a former Chief Justice of the Madras High Court filed an application under Section 482 of the Code of Criminal Proce- dure, 1973 (Criminal M.P. No. 265 of 1978) to quash the proceedings in C.C. No. 46 of 1977 in the Court of the Special Judge, Madras, initiated on a charge-sheet accusing him of the offence of criminal misconduct under Section 5(1)(e) punishable under Section 5(2) of the Act, as amended by the Amendment Act of 1964. The matter was heard by a full bench of the High Court which dismissed the application by order dated 27.4. 1979 according to the majority opinion of Natarajan and Mohan, JJ. while Balasubrahmanyan, J. dissent- ed. This appeal is by a certificate granted by the High Court under Articles 132(1) and 134(1)(c) of the Constitu- tion of India in view of the important question of law involved for decision.

The material facts are only a few. The appellant joined the Bar of Madras in the year 1941 and had a lucrative prac- tice. In 1953 he was appointed as Assistant Government Pleader and in 1959, the Government Pleader at Madras. On 20.2.1960, he was elevated to the Bench of the Madras High Court being appointed as a permanent Judge of that Court. On 1.5. 1969, he was appointed the Chief Justice of the Madras High Court, from which office he retired on 7.4.1976. On 24.2. 1976, the Central Bureau of Investigation at Delhi registered a case against the appellant under the Act and on 28.2.1976, the First Information Report was lodged accusing the appellannt of the offence of criminal misconduct under Section 5(1)(e) punishable under Section 5(2) of the Act. A charge-sheet dated 15.12.1977 was filed alleging that be- tween 1.5. 1969. and 24.2. 1976, while the appellant was a public servant, he was in possession of pecuniary resources and property in his own name and in the names of his wife Smt. Eluthai Ammal and his two sons S/Shri V. Suresh and V. Bhaskar, which were disproportionate to the extent of Rs.6,41,416.36p. to his known sources of income during that period and that he cannot satisfactorily account for such disproportionate pecuniary resources and property. The charge sheet also gave particulars on the basis of which the disproportion in assets was alleged.
The appellant filed a petition under Section 482 Cr. P.C. in the High Court for quashing the prosecution pending in the Court of Special Judge, Madras, on the above charge- sheet, with the result indicated above. Several arguments including the allegation of mala fides against the Central Government were advanced in the High Court on behalf of the appellant. It is, however, unnecessary to refer to all of them since at the hearing of the appeal before us, the appellant’s case was confined only to the grounds stated hereafter and the ground of mala fides alleged in the High Court was expressly given up at the hearing before us by Shri Kapil Sibal, learned counsel for the appellant. Shri Kapil Sibal, learned counsel for the appellant advanced two arguments only. His first contention is that the Judges of the High Courts and the Supreme Court are not within the purview of the Act, which is a special enactment applicable to public servants, in whose case prosecution can be launched after sanction granted under Section 6 of the Act, which is alien to the scheme envisaged for constitu- tional functionaries like Judges of the High Courts and Supreme Court. He argued that the special provisions in the Constitution of India relating to the Judges of the High Courts and the Supreme Court clearly indicate that they are not within the purview of the Act and that after their appointment in the manner prescribed, they are wholly immune from executive influence, their tenure being fixed by the Constitution, except for removal in the manner prescribed by Article 124(4). The other argument of Shri Sibal is that one of the essential ingredients of the offence of criminal misconduct, defined in Section 5(1)(e) of the Act, which is punishable under Section 5(2) thereof, is the inability of the accused to satisfactorily account for possession of disproportionate assets, which must be evident from the documents annexed to the charge-sheet to enable the Special Judge to take cognizance of the offence and this can be possible only if the accused is asked to give his account before filing of the charge-sheet. On this basis, it was argued that the procedure for grant of sanction under Sec- tion 6 of the Act which requires the sanctioning authority to see the explanation of the public servant before granting sanction, makes it feasible, which also shows its inapplica- bility to the superior Judges, in whose case there is no such service record or machinery provided. In a way, the second argument of Shri Sibal also is connected with his first argument. Shri Sibal argued that irrespective of the desirability of enacting a law providing for the prosecution and trial of superior Judges accused of the offence of criminal misconduct, the existing law contained in the Act is inapplicable to them. In reply, the learned Solicitor General, who was followed by the learned Additional Solicitor Gener- al, strenuously urged that the Judges of the High Courts and the Supreme Court also fall within the purview of the Act being ‘public servants’, which definition is wide enough to include ‘every Judge’. They argued that there is no immunity to the superior Judges as in the case of the President and the Governor under Article 36 1 of the Constitution and, therefore, there was no reason to exclude to superior Judges from the purview of the Act. The difficulty of sanction under Section 6 for the prosecution of superior Judges and the special provisions contained in clauses (4) and (5) of Article 124 read with Article 2 18, it was suggested, pre- sented no difficulty since the President of India could be treated as the competent authority to grant sanction in accordance. with Section 6(1)(c) of the Act in the case of the High Court and Supreme Court Judges. The learned Solici- tor General and the Additional Solicitor General also urged that adequate safeguards in the form of guidelines be sug- gested by this Court to prevent any abuse of executive authority or harassment to independent Judges. It was sug- gested that some machinery involving the Chief Justice of India for grant of sanction for prosecution by the President of India, even for investigation into the offence, could be suggested by this Court for implicit compliance by the executive. It was argued that in this manner preservation of independence of the judiciary could be ensured while treat- ing the superior Judges also within the purview of the Act to enable the prosecution and punishment of the corrupt ones.

In view of the great significance of the point involved for decision which has arisen for the first time, the matter was heard at considerable length to illuminate the grey areas. At the hearing the consensus was that, this unfortu- nate controversy not envisaged earlier, having now arisen, may be, it is time that a clear provision be made within the constitutional scheme to provide for a machinery to deal with the corrupt members of the superior judiciary, which itself is necessary for preservation of the independence of the judiciary. However, the difference is with regard to the adequacy of machinery enacted in the existing legislation for this purpose. In other words, the difference is about the law as it is and not about what it should be. For the purpose of deciding this case, we have to see the law as it now exists.
The main point for consideration is whether the Chief Justices and puisne Judges of the High Courts are within the purview of the Act. It is implicit that if the answer is in the affirmative, then the Chief Justice and Judges of the Supreme Court also would fall within the purview of the Act and so also the Comptroller and Auditor Genera-
and the Chief Election Commissioner, whose terms and condi- tions of office are the same as those of a Judge of the Supreme Court of India. If for any reason the Comptroller and Auditor General and the Chief Election Commissioner be considered outside the purview of the Act, that would itself indicate exclusion of certain similar constitutional func- tionaries from the purview of the Act. The real question, therefore, is: Whether these constitutional functionaries were intended to be included in the definition of ‘public servant’, as defined in the Act, and the existing enacted law is to that effect. The desirability of enacting such a law applicable to them, it was strenuously urged at the hearing, would be a matter primarily for the Parliament to consider in case the existing law as enacted does not apply to them. 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 desirabil- ity 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 since such an exercise would be wholly impermissible in the garb of judicial craftmanship which cannot replace legislation in a vergin field. Judicial activism can supply the deficien- cies and fill gaps in an already existing structure found deficient in some ways, but it must stop sort of building a new edifice where there is none. In a case like the present, the only answer can be a definite ‘yes’ or definite ‘no’, but not ‘yes’ with the addition of the legislative require- ments in the enactment which are wholly absent and without which the answer cannot be ‘yes’. In my considered view 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. It was suggested at the hearing that the guidelines so suggested and supplied with the aid of which the existing law could be made applicable to supe- rior Judges would be akin to the exercise performed by this Court while dealing with the Administrative Tribunals Act in S.P. Sam path Kumar v. Union of India & Ors., [1987] 1 SCC

124. I am afraid this analogy is not apt there being no similarity in the two situations. The Administrative Tribu- nals Act as enacted was found to suffer from certain infirm- ities which would render it invalid and thereby failing to achieve the object of its enactment unless the deficiencies therein were supplied. It was to overcome this situation that this Court in Sam path Kumar suggested ways and means to overcome those infirmities to achieve the object of enactment of that legislation and thereby make the legisla- tion workable as a valid piece of legislation. The situation here is entirely different. The 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. The only question which now arises is: Whether this piece of legislation also applies to certain constitutional functionaries such as the High Court Judges and if the answer is in the negative, the life of the enact- ment is not jeopardised in any manner. The only result is that in case such a legislation 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. It is, therefore, difficult to appreciate such an argument when the question for our decision is only of construction of the legislation as enacted to determine the field of its operation. Reference may now be made to certain statutory provi- sions on the basis of which the point has to be decided. The definition of ‘public servant’ given in the Act includes ‘every Judge’. Sub-section (1) of Section 5 of the Act defines ‘criminal misconduct’ in its several clauses and Sub-section (2) thereof prescribes punishment for the of- fence of criminal misconduct. Section 5A deals with investi- gation into cases under this Act and Section 6 is the provi- sion for previous sanction necessary for prosecution. Thus, no Court shall take cognizance of an offence punishable under Sub-section (2) of Section 5 of the Act except with the previous sanction of the competent authority envisaged by clauses (a), (b) and (c) of Sub-section (1) of Section 6 of the Act. It is for this reason that Section 6 assumes significance for the applicability of the Act since previous sanction for prosecution is necessary for taking cognizance of an offence under Section 5(2) of the Act and in situa- tions where no such sanction can be envisaged, the Act cannot be made applicable. The relevant provisions of the Act as in existence after the 1964 amendment are quoted as under:

“2. Interpretation.–For the purposes of this Act, “public servant” means a public servant as defined in Section 21 of the Indian Penal Code (45 of 1860).XXX XXX XXX4. Presumption where public servant accepts gratification other than legal remu- neration.–(1) Where in any trial of an of- fence punishable under Section 16 1 or Section 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in clause (a) or clause (b) of sub-section (1) of Section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained, or as agreed to accept or at- tempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or ob- tained, or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.(2) Where in any trial of an offence punishable under Section 165A of the Indian Penal Code (45 of 1860) or under clause (ii) or sub-section (3) of Section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing as the case may be as a motive or reward Such as is mentioned in Section 161 of the Indian Penal Code or, as the case may be, without consideration or for a considera- tion which he known to be inadequate. (3) Notwithstanding anything contained in subsections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.5. Criminal misconduct.-(1) A public servant is said to commit the offence of criminal misconduct–(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other per- son, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code (45 of 1860), or(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consider- ation which he knows to be’ inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him. or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be inter- ested in or related to the person so con- cerned, or(c) if he dishonestly or fraudulently misap- propriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advan- tage, or(e) 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 income.(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.XXX XXX XXX 5A. Investigation into cases under this Act.–(1) Notwithstanding anything con- tained in the Code of Crimi-nal Procedure, 1898 (5 of 1898), no police officer below the rank,–(a) in the case of the Delhi Special Police Establishnent, of an Inspector of Police;(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Po- lice;(c) in the presidency-town of Bombay, of Superintendent of Police; and(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161. Section 165 or Section 165A of the Indian Penal Code (45 of 1860) or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may De, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magis- trate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.(2) If, from information received or otherwise, a police officer has reason to suspect the commission of an offence which.he is empowered to investigate under subsection (1) and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers’ books, then, notwithstanding anything conrained in any law for the time being in force, he may inspect any bankers’ books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section: Provided that no power under this sub-section in relation to the accounts of any person shall be exercised by a police officer below the rank of Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police. Explanation. In this sub-section, the expressions “bank” and “bankers’ books” shall have the meanings assigned to them in the Bankers’ Books Evidence Act, 189 1 ( 18 of 1891).6. Previous sanction necessary for prosecution.–(1) No court shall take cogni- zance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860), or under sub- section (2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government;(b) 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 sanction of the State Government, of the State Government;(c) in the case of any other person, of the authority competent to remove him from his office.(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under subsection (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been com-petent to remove the public servant from his office at the time when the offence was alleged to have been committed.”The relevant provisions of the Constitution of India are as under:

12 1. Restriction on discussion in Parliament .–No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

XXX XXX XXX

124. Establishment and constitution of Supreme Court.–(1) …….XXX XXX XXX (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).XXX XXX XXX148. Comptroller and Auditor-General of India.(1) There shall be a Comptroller and Auditor-General of India who shall be appoint- ed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.XXX XXX XXX211. Restriction on discussion in the Legislature. No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the dis- charge of his duties.XXX XXX XXX218. Application of certain provi- sions relating to Supreme Court to High Courts .–The provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of refer- ence to the High Court for references to the Supreme Court.XXX XXX XXX324. Superintendence, direction and control of elections to be vested in an Elec-       tion Commission.–(1)        XXX        XXX       XXX       (5) Subject to the  provisionsof any law made by Parliament, the conditions of service and tenure of office of the Elec- tion Commissions and the Regional Commission- ers shall be such as the President may by rule determine:Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Elec- tion Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commis- sioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.XXX XXX XXX361. Protection of President and Governors and Rajpramukhs.–(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designat- ed by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.(2) No criminal proceedings whatso- ever shall be instituted or continued against the President, or the Government of a State, in any court during his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.(4) No civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor. as the case may be, or left at his office stating the nature of the pro- ceedings, the cause of action therefore, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.”It may also be mentioned that the Judges (Inquiry) Act, 1968 has been enacted by the Parliament to regulate the procedure for the investigation and proof of the misbeha- viour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith, as contemplated by Articles 124(5) of the Constitution of India. It is in the background of these provisions that the point arising for our determination has to be decided.
I may also at this stage refer to the recommendations made by the Santhanam Committee which preceded the 1964 amendment in the Act. It is as a result of the 1964 amend- ment that clause (e) was inserted in Sub-section (1) of Section 5 of the Act to make the possession of dispropor- tionate assets by a public servant by itself a substantive offence of criminal misconduct, while prior to this amend- ment such a provision was merely a rule of evidence con- tained in Sub-section (3) of Section 5 as initially enacted which was then available only to prove the offence of crimi- nal misconduct defined in clauses (a) to (d) of Sub-section (1) of Section 5. In the Report of the Santhanam Committee, certain portions relating to the judiciary which may throw light on the question before us are extracted as under:

“SECTION 12 MISCELLANEOUS XXX XXX XXX 12.2 We did not consider the judici- ary to be included in our terms of reference. Except the Supreme Court and some subordinate courts in the Union Territories, the Govern- ment of India have no direct relation with the administration of the judiciary except that appointment of High Court Judges is made by the President. It has to be borne in mind, however, that all courts in india are common to the Centre and the States and can entertain and decide cases relating to exclusively Central subjects. Therefore, integrity of the judiciary is of paramount importance even for the proper functioning of the Central Govern- ment.Though we did not make any direct inquiries, we were informed by responsible persons including Vigilance and Special Police Establishment Officers that corruption exists in the lower ranks of the judiciary all over India and in some places it has spread to the higher ranks also. We were deeply distressed at this information. We, therefore, suggest that the Chief Justice of India in consulta- tion with the Chief Justices of the High Courts should arrange for a thor- ough inquiry into the incidence of corruption among the judiciary, and evolve, in consulta- tion with the Central and State Governments, proper measures to prevent and eliminate it. Perhaps the setting up of vigilance organisa- tion under the direct control of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropri- ate method.        XXX   XXX     XXX        SUMMARY      OF       CONCLUSIONS AND       RECOMMENDATIONS XXX   XXX       XXX

117. The Chief Justice of India in consulta- tion with the Chief Justices of the High Courts should arrange for a thorough inquiry into the incidence of corruption, among the judiciary, and evolve, in consultation with the Central and State Governments, proper measures to prevent and eliminate it. Perhaps the setting up of vigilance organisations under the direct control of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropriate method.      (Para. 12.2) XXX        XXX     XXX        REPORT ON   THE    GOVERNMENT    SERVANTS’       CONDUCT RULES XXX        XXX    XXX        Rule 1515. The Committee attaches great impor- tance to the changes recommended in the exist- ing Rule 15 relating to the acquisition and disposal of property by Government servants. On the one hand, these reports serve as a check against corruption and on the other, it may be irritating to honest Government serv- ants to be subject to restrictions not imposed on other citizens. It is also necessary to ensure that the reports are such as to serve the purpose for which they are obtained. Further, no reports need be obtained from those Government servants who have no opportunity to enrich themselves by unlawful means.16. The most important change made by the Committee in this rule is the replacement of the annual immovable property return by a complete periodical statement of assets and liabilities. In the circumstances now obtain- ing in the country, the immovable property return has ceased to have much significance. The Committee considers that in order to enable Government to ascertain whether any Government servant is in possession of assets disproportionate to his known sources of income or whether he is running into debt, it is necessary that the Government servant should furnish a complete statement of his assets and liabilities periodically.17. The Committee considers that only the more/ important items of movable property should be reported specifically and that it would be sufficient if Government servants report the total value of other movable property except articles of daily use like clothes, utensils, crockery, books, etc. But it is essential that the value of ‘movable property should be stated in the statement of assets and liabilities.18. The Committee considered the argument that there was no need for the submission of periodical returns of assets and liabilities and that it would be sufficient if such a statement is given once either on entry or after promulgation of these rules and that thereafter it should be enough if the Govern- ment servant is required to report all trans- actions in immovable property and all transac- tions in movable property exceeding a speci- fied value. The Committee decided to recommend that Government servants should be required to submit a periodical statement of assets and liabilities, as it would not be reasonable to require the Government servants to report all the innumerable small transactions taking place continually. But as these small transac- tions may cumulatively be sizable and have a big effect on his financial position, the purpose will be served only by obtaining a periodical balance-sheet. The Committee, however, consid- ers that the reports need not be frequent and that it may perhaps be sufficient if they are submitted once in five years.19. Another point that was consid- ered by the Committee was whether jewellery should be included within the definition of movable property. The Committee recognises that inclusion of jewellery may be considered to be an unnecessary intrusion into the pri- vate affairs of a Government servant. But jewellery constitute important assets and if excluded from the definition of movable property, the balance-sheet submitted by the Government servant may not set out the true picture.”(emphasis supplied) In view of the decision by a Constitution Bench in R.S.Nayak v. A.R. Antulay, [1984] 2 SCC 183 the correctness of which was not disputed before us, we have to assume for the purpose of this case that no sanction under Section 6 of the Act was required-for prosecution of the appellant since cognizance of the offence was taken after the appellant ceased to hold the office of Chief Justice on 7.4.1976 on his retirement. It was, however, contended that for the purpose of deciding the question of applicability of the Act to the appellant as a Judge or Chief Justice of the High Court, the office with reference to which the offence under the Act is alleged to have been committed, it is necessary to consider the feasibility of grant of sanction under Section 6 of the Act for prosecution of a person holding such an office. In other words, the argument is that not- withstanding the fact that no sanction was required for prosecution of the appellant after his retirement, the need and feasibility of grant of the sanction under Section 6 of the Act if he was prosecuted before his retirement is the test to determine the applicability of the Act to a person holding, the office of a Judge or Chief Justice of a High Court. It is argued that if the grant of sanction under Section 6 of the Act for prosecution of the incumbent for the offence is not feasible or envisaged, the clear indica- tion is that holder of such office does not fall within the purview of the Act. The question of grant of sanction under Section 6 for the prosecution of a Judge or Chief Justice of a High Court for an offence punishable under Section 5(2) of the Act is, therefore, of considerable importance to decide the main question in this appeal.
Clauses (a), (b) and (c) in Sub-section (1) of Section 6 exhaus- tively provide for the competent authority to grant sanction for prosecution in case of all the public servants failing within the purview of the Act. Admittedly, such previous sanction is a condition precedent for taking cognizance of an offence punishable under the Act, of a public servant who is prosecuted during his continuance in the office. It follows that the public servant falling within the purview of the Act must invariably fall within one of the three clauses in Sub-section (1) of Section 6. It follows that the holder of an office, even though a ‘public servant’ accord- ing to the definition in the Act, who does not fall within any of the clauses (a), (b) or (c) of Sub-section (1) of Section 6 must be held to be outside the purview of the Act since this special enactment was not enacted to cover that category of public servants inspite of the wide definition of ‘public servant’ in the Act. This is the only manner in which these provisions of the Act can be harmonized and given full effect. The scheme of the Act is that a public servant who commits the offence of criminal misconduct, as defined in the seven clauses of Sub-section (1) of Section 5, can be punished in accordance with Subsection (2) of Section 5, after investigation of the offence in the manner prescribed and with the previous sanction of the competent authority obtained under Section 6 of the Act, in a trial conducted according to the prescribed procedure. The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a public servant covered by the Act, it must follow that the holder of an office who may be a public servant according to the wide definition of the expression in the Act but whose category for the grant of sanction for prosecution is not envisaged by Section 6 of the Act, is outside the purview of the Act, not intended to be covered by the Act. This is the only manner in which a harmonious constitution of the provisions of the Act can be made for the purpose of achieving the object of that enact- ment. This appears to be the obvious conclusion even for a case like the present where no such sanction for prosecution is necessary on the view taken in Antulay, and not chal- lenged before us, that the sanction for prosecution under Section 6 is not necessary when cognizance of the offence is taken after the accused has ceased to hold the office in question.

In this context, it is useful to recall the analysis of Section 6 made in R.S. Nayak v. A.R. Antulay, [1984] 2 SCC 183, which is as under:

“Offences prescribed in Sections 161, 164 and 165 IPC and Section 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying. the office carries with it the powers conferred on the office. Power general- ly is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status. The holder of the office alone would have opportunity to abuse or misuse the of- fice. These sections codify a well-recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power con- ferred on the office. The interrelation and interdependence between individual and the office he holds is substantial and not severa- ble. Each of the three clauses of subsection (1) of Section 6 uses the expression ‘office’ and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the author- ity must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with oppor- tunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other then legal remuneration for doing or forebearing to do an official act (Section 161 (IPC) or as a public servant abets offences punishable under Sec- tions 161 and 163 (Section 164 IPC) or as public servant obtains a valuable thing with- out consideration from person concerned in any proceeding or business transacted by such public servant (Section 165 IPC) or commits criminal misconduct as defined in Section 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression ‘office’ in the three sub-clauses of Section 6(1) would clear- ly denote that office which the public servant misused or abused for corrupt motives for which he is to be prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authori- ty who would be able to judge the action of the public servant before removing the bar, by granting sanction, to the taking of the cogni- zance of offences by the court against the public servant. Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. lqbal Ahmad v. State of A.P., [1979] 2 SCR 1007: [1979] 4 SCC 172: [1979] SCC (Cri.) 926: AIR 1979 SC 677).”The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or specula- tive. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power con- ferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office.”(emphasis supplied) (para 23, pp. 204-206) It is significant from the above extract in Antulay that for the purpose of grant of sanction under Section 6 of the Act to prosecute the public servant, a ‘vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought’ is clearly envisaged and, therefore, the authority competent to remove the public servant from that office should be vertically superior in the hierarchy in which the office exists having the competence to judge the, action of the public servant before removing the bar by granting sanction. In other words, Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servant against whom sanction is sought is under the sanctioning authority in that hierarchy. It would follow that where the office held by the public servant is not a part of a verti-cal hierarchy in which there is an authority above the public ‘servant in that hierarchy, by the very scheme of Section 6 it can have no application and holder of such office who does not have any vertical superior above him in the absence of any such hierarchy cannot be within the ambit of the enactment, the Act not being envisaged or enacted for holder of such public office. The decisions of this Court have unequivocally held that a Judge or Chief Justice of a High Court is a constitutional functionary, even though he holds a public office and in that sense, may be included in the wide definition of ‘public servant’. It is for this reason that the learned Solicitor General did not place reliance on clauses (a) and (b) of Sub-section (1) of Sec- tion 6 in the present case but relied on clause (c) thereof, to contend that sanction thereunder can be obtained for the prosecution of a Judge or Chief Justice of a High Court since the holder of such an office can be removed from office by the President in accordance with clause (4) of Article 124 of the Constitution. This is the only argument for this purpose and, therefore, its tenability has to be tested.
Section 6(1)(c) provides for previous sanction ‘in the case of any .
other person, of the authority competent to remove him from his office’. Clauses (4) and (5) of Article 124 which apply to a Judge of the Supreme Court are made applicable to Judges of the High Courts by virtue of Article 218. These may be re-quoted here for readyreference:

“124. Establishment and constitution of Su- preme Court'(1) …XXX XXX XXX (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of the House and by a majority of not less than two- thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).XXX XXX XXX218. Application of certain provi- sions relating to Supreme Court to High Courts.- The provisions of clauses (4) and (5) of Article 124 Shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of refer- ences to the High Court for references to the Supreme Court.”According to Article 124(4), a Judge can be removed from his office by an order of the President passed after an address by each House of Parliament supported by the pre- scribed majority on the ground of proved misbehaviour or incapacity. Since the order of removal in such a case is to be made by the President, the learned Solicitor General contended that the competent authority to remove such a Judge as required by Section 6(1)(c) is the President and it is in this manner that Section 6(1)(c) is attracted. The question is whether this argument is tenable.

There are several fallacies in this argument. Section 6(1)(c) speaks of ‘authority competent to remove’ which plainly indicates the substantive competence of the authori- ty to remove, not merely the procedural or formal part of it. In other words, the authority itself should be competent to remove or the one to decide the question of removal and not the which merely obeys or implements by the decision of some other authority. This conclusion is reinforced’by the above extract from the Antulay decision, which speaks of the vertical hierarchy between the authority competent to remove the public servant and the nature of the office held by the public servant indicating 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. Obviously, the competent sanctioning authority envisaged thereby is a vertical superior in the hierarchy having some power of superintendence over the functioning of the public servant. Where no such relation- ship 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, Section 6 can have no application by virtue of the scheme engrafted therein. The expression ‘authority competent to remove’ under Section 6(1)(c), unless construed in this manner, will foul with the construction made on Section 6 andits scheme in the Antulay decision.

In S.P. Gupta & Ors. etc. etc. v. Union of India & Ors. etc. etc., 1982] 2 SCR 365 it was clearly pointed out that a High Court Judge is a high constitutional functionary and while dealing with the question of the machinery having legal sanction to deal with a High Court Judge against whom allegations of lack of intergrity and corruption were made, it was stated as under:

“. ….. Baldly put, the question is: Should an Additional Judge whose misbeha- viour or lack of integrity has come to the fore he continued as an Additional Judge or confirmed as a Permanent Judge? The answer at the first impulse and rightly would be in the negative but the question requires deeper consideration. If the misbehaviour or lack of integrity is glaringly self-evident the ques- tion of his continuance obviously cannot arise and in all probabilities will not engage the attention of the appointing authority, for, the concerned Judge in such a situation would himself resign but when we talk of misbehaviour or lack of integrity on the part of an Additional Judge having come to the fore, by and large the instances are of sus- pected misbehaviour and/or reported lack of integrity albeit based on opinions expressed in responsible and respectable quarters and the serious question that arises is whether in such cases the concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon? In my view since the question relates to the continuance of a high constitutional functionary like the Additional Judge of High Court it would be jeopardising his security and judicial inde- pendence if action is taken on the basis or merely opinion material. Moreover, no machin- ery having legal sanction behind it for hold- ing an inquiry–disciplinary or otherwise against the concerned Judge on allegations of misbehaviour and or lack of integrity obtains in the Constitution or any law made by the Parliament, save and except the regular proc- ess of removal indicated in Art. 124(4) and (5) read with Art. 218 and the Judges (In- quiry) Act, 1968.”Therefore, the important question that arises in such cases of suspect- ed misbehaviour and/or reported lack of integ- rity is who will decide and how whether the concerned Judge has in fact indulged in any misbehaviour or act of corruption? In the absence of satisfactory machinery possessing legal sanction to reach a positive conclusion on the alleged misbehaviour or an act of corruption the decision to drop him shall have been arrived at merely on the basis of opin- ions, reports, rumours or gossip and apart from being unfair and unjust to him such a course will amount to striking at the root of judicial independence. The other alternative, namely, to continue him as an Additional Judge for another term or to make him permanent if a vacancy is available and then take action for his removal under the regular process indicat- ed in Art. 124(4) and (5) read with Art. 2 18 and Judges (Inquiry) Act,1968 may sound absurd but must be held to be inevitable if judicial independence, a cardinal faith of our Consti- tution, is to be preserved and safeguarded. Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public inter- est but at the same time preserving judicial independence is of the highest public inter- est. It is a question of choosing the lesser evil and in inevitable course has to’ be adopted not for the protec- tion of the corrupt or dishonest judge but for protecting several other honest, conscientious and hard-working Judges by preserving their independence; it is a price which the Society has to pay to avoid the greater evil that will ensue if judicial independence is sacrificed. Considering the question from the angle of public interest therefore, I am clearly of the view that while considering the question of continuance of the sitting Additional Judges on the expiry of their initial term either as Additional Judges or as Permanent Judges the test of suitability contemplated within the consultative process under Art. 217(1) should not be invoked–at least until such time as proper machinery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Art. 124(4) and (5) of the Constitution.” (Tulzapurkar, J. ) (pp. 920-21) ” ….. As the law now stands it is not open to any single individual, whether it is the President or the Chief Justice of India or anybody else to take cognizance of any allegations of misbehaviour or of incapacity of a Judge and to take any legal action on their basis under the Judges (Inquiry) Act,/1968. One hundred Members of the Lok Sabha or fifty Members of the Rajya Sabha alone can initiate any action on such allega- tions. Naturally, all others are excluded from taking cognizance of them and acting on them …….(Venkataramiah, J.) (pp. 1338-39) (emphasis supplied) Even though the above observations were made in the context of continuance in office of Additional Judge of the High Court and the transfer of Judges to another High Court, yet the nature of office of a High Court Judge and the only legal sanction available under the existing law to deal with them even in the event of allegations of corruption was clearly spelt out. It was pointed out that ordinarily such a person faced with cogent material against him would resign, but in case he does not, the only remedy available is his removal from office in accordance with clauses (4) and (5) of Article 124 read with Article 218 of the Constitution till a suitable provision with legal sanction is made. It was also pointed out that the object served in this manner was the greater public interest to preserve independence of judiciary and not to protect the corrupt Judge who was an exception. The scheme of the exist- ing law to deal with such situations was considered at length and it was also held that even the power to transfer under Article 222 of the Constitution to another High Court could not be exercised for these reasons.

In this context, clause (5) of Article 124 is also of considerable significance. The construction made of the provisions of the Act must also fit in with the scheme of clauses (4) and (5) of Article 124 read with Article 2 18 of the Constitution in order to present a harmonious scheme. Clause (5) of Article 124 enables enactment of a special law by the Parliament to regulate the procedure for presentation of an address and for the ‘investigation’ and ‘proof’ of the ‘misbehaviour’ or incapacity of a Judge under clause (4). It is in exercise of this power that the Parliament has enacted the Judges (Inquiry) Act, 1968. It is significant that clause (5) of Article 124 covers the field of ‘investiga- tion’ and ‘proof’ of the ‘misbehaviour’ of a Judge. There can be no doubt that the expression ‘misbehaviour’ is of wide import and includes within its ambit criminal miscon- duct as defined in Sub-section (1) of Section 5 of the Act as also lesser misconduct of a Judge falling short of crimi- nal 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 ‘misbehaviour’ and the only punishment provided is by Article 124(4) of removal from office. There is no escape from the conclusion that Article 124(5) 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. Thus, 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 provi- sions were made in the Constitution and the law thereunder enacted when the Prevention of Corruption Act, 1947 was in the Statute Book. The prior enactment and existence of the Prevention of Corruption Act, 1947 at the time then clause (4) and (5) of Article 124 of the Constitution were framed, does indicate 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 constitu- tional functionaries notwithstanding the general law available and applicable to the public servants in general, which included the Preven- tion of Corruption Act, 1947. If special provisions in the form of clauses (4) and (5) of Article 124 and Article 2 18 of the Constitution and the special enactment by the Parlia- ment under Article 124(5) were provided in the constitution- al scheme for Judges of the High Courts and the Supreme Court, there can be no valid reason to hold that they are governed by the general provisions 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. Construction of Section 6(1)(c) of the Act as suggested by the learned Solicitor General by treating the President as ,the competent authori- ty 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 construc- tion has undoubtedly to be avoided. This is more so, since the rejection of such an argument would not in any manner jeopardise the provisions of the Act as it would result only in the failure of the attempt to bring the constitutional functionaries such as Judges of the High Courts and the Supreme Court within the purview of that Act, while the Act would continue to apply to the public servants in general who fall within the scheme of Section 6 of the Act for the purpose of grant of previous sanction for prosecution which is a condition precedent for cognizance of an offence pun- ishable under that Act.

It can also not be overlooked that the Santhanam Committee Report did not consider the judiciary within its purview and it merely made certain recommendations to devise a machinery involving the Chief Justice of India to deal with the cases of errant Judges. The 1964 amendment made in the Act pursuant to the recommendations of the Santhanam Commit- tee did not make any amendment in the Act to indicate that Judges of the High Courts and the Supreme Court were also brought within the purview of the Act. It was thereafter that the Judges (Inquiry) Act, 1963 and the rules framed thereunder were enacted to provide for the investigation and proof of allegations of misbehaviour of a Judge in accord- ance with Article 124(5) of the Constitution. The decision in S.P. Gupta was rendered much later and while dealing with the situations arising out of allegations of misbehaviour including corruption against High Court Judges, it was held that the only machinery with legal sanction in existence is that available under clauses (4) and (5) of Article 124 of the Constitution. It is reasonable to assume that while rendering the decision in S.P. Gupta, where in the question of dealing with some Judges against whom allegations of lack of integrity and corruption also were made and the question was of the machinery available for dealing with them, the learned Judges could not have been unaware of the provisions of the Act while taking the view that the only legal machinery available under the existing law is that in accordance with clauses (4) and (5) of Article 124 of the Constitution. These are strong reasons to hold that Section 6(1)(c) of the Act is inappliable to a Judge of a High Court or the Supreme Court and for that reason such constitutional functionaries do not fall within the purview of the Act.

An additional reason indicating inapplicability of the Act is the practical difficulty in applying criminal miscon- duct, defined in clause (e) of Sub-section (1) of Section 5 of the Act, to a Judge of a High Court or the Supreme Court. The history of insertion of this clause:, y the 1964 amend- ment to the Act is well-known. What was earlier a rule of evidence in Sub-section (3) of Section 5 of the Act, was made a substantive offence of criminal misconduct by insert- ing clause (e) in Sub-section (1) of Section 5 by this amendment. Apart from the argument of the learned counsel for the appellant that the inability to satisfactorily account for possession of disproportionate assets is an ingredient of the offence in clause (e), practical require- ment of this clause is a further pointer to indicate inap- plicability thereof to a Judge of a High Court or the Su- preme Court. The fact remains that while according sanction to prosecute under Section 6 of the Act, the competent authority has to satisfy itself about the public servant’s inability to satisfactorily account for possession of dis- proportionate assets. As held in Antulay, the competent authority before granting sanction has to apply its mind and be satisfied about the existence of a prima facie case for prosecution of the public servant on the basis of the mate- rial placed before it. In order to form an objective opin- ion, the competent authority must undoubtedly have before it the version of the public servant on the basis of which the conclusion can be reached whether it amounts to satisfactory account or not. It is well-known and is also clear from the Report of the Santhanam Committee that 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. The recom- mendations of the Santhanam Committee after which the 1964 amendment inserting clause (e) in Sub-section (1) of Section 5 was made, suggest some amendment to the rules governing the conduct of public servants for giving periodical infor- mation of all their assets. Prescribing the substantive offence by insertion of clause (e.) as a part of the same schem of amendment also suggests the manner in which this require- ment of the offence of inability to satisfactorily account can be examined by the competent authority while granting sanction to prosecute the public servant. These words in clause (e) 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 Section 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 account can be inferred. This requirement can be easily satisfied in the case of public servants governed by conduct rules requiring them to furnish periodical returns of their/assets and to intimate the superior in the hierarchy of acquisition of every material assets, so that his service record at all times contains particulars of his known assets. In the case of such public servants whenever sanction to prosecute is sought under Section 6 of the Act, the competent authority can form the requisite opinion on the basis of the available material including the service record of the public servant to come to the conclusion whether the offence under clause (e) of possession of disproportionate assets which the public servant cannot satisfactorily account is made out prima facie. In the case of Judges of the High Courts and the Supreme Court, there is no such requirement under any provi- sion 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 concerned Judge. It does appear that this too is a pointer in the direction that even after the 1964 amendment of the Act following the Report of the Santhanam Committee when clause (e) was inserted in Sub-section (1) of Section 5 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.

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 Comptroller and Auditor General and the Chief Election Commissioner. Incongruous results would follow in such an event, even assuming that the guidelines suggested by the learned Solic- itor General, are deemed to be incorporated in the Act by implication while dealing with persons holding these of- fices. Apart from the legal permissibility of implying these guidelines in the Act, there are obvious practical difficul- ties which cannot be overcome. In the proposed guidelines, it was suggested that the involvement of the Chief Justice of India invariably should be read even for commencing the investigation into the offence and the President, while granting the sanction under Section 6(1)(c), would also act on the advice of the Chief Justice of India. Assuming that it is permissible to do so in the absence of any such provi- sion in the Act, the problem which stares us in the face is, what is to be done where such action is contemplated against the Chief Justice of India himself. Any provision which cannot apply to the Chief Justice of India, cannot obviously 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: The incumbent of the office of Chief Justice of India exercises only moral authority over his colleagues in the Supreme Court and the High Court Judges, which has no legal sanction behind it making it justiciable. In the case of the Comptroller and Auditor General and the Chief Election Commissioner, the situation would be more piquant. Obviously, the Chief Jus- tice of India cannot be involved in the process relating to them and there is none else to fill that role in that situa- tion. 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. The infirmity of this argu- ment advanced by the learned Solicitor General invoking the aid of certain implied guidelines involving the Chief Jus- tice of India in the process of contemplated action under the Act against a Judge of the High Court or the Supreme Court, leaves more questions unanswered that it answers. That apart, if the Act was intended to apply to these con- stitutional 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. It was also suggested at the hearing that the absence of need of sanction for prosecution under Section 6 of the Act after the public servant ceases to hold office as held in Antulay, suggests answer to the question of construction posed in this case. It does not appear to be so. The need for sanction under Section 6 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 doubt, as held in Antulay, no sanction for prosecution under Section 6 is required 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 Section 6 must be obtained. The ambit of the enactment is to be determined on the basis of the public office held by the public serv- ant, 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. In other words, if the holder of a public office during his tenure in office cannot be prosecuted without sanction under Section 6, then, as held in Antulay, 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 Section 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 Section 6 and, therefore, the non-feasibility of previous sanction for prosecution under Section 6, then on his ceas- ing to hold the office, he is not brought within the purview of the Act merely because Antulay decides that no sanction for prosecution under Section 6 is ‘needed after the holder of a public office ceases to hold that office. 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 Section 6 of the Act is important. In short, it is for the purpose of construction of the provisions of the enactment and deter- mining its scope that Section 6 which prescribes the condi- tion precedent of previous sanction for prosecution for the offence of criminal misconduct punishable under Section 5(2) of the Act, holds the key which unlocks the true vistas of the enactment.

The concept of 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 arch of the enactment. Remove the keystone of sanc- tion and the arch crumbles.

The conclusion that the Act does not apply to these constitutional functionaries, namely, Judges of the High Courts, Judges of the Supreme Court, the Comptroller and Additor General and the Chief Election Commissioner, need not be viewed with scepticism or treated as their exclusion from the purview of the Act as if they are ordinarily within its ambit. A proper perception would indicate that these constitutional functionaries were never intended to fail within the ambit of the Act as initially enacted in 1947, when provisions similar to Articles 124(4) & (5) of the Constitution were present in the Government of India Act, 1935, nor was any such attempt made by amendment of the Act’ in 1964 subsequent to the Report of the Santhanam Committee and the same position continues in the Prevention of Corruption Act, 1988. If there is now a felt need to provide for such a situation, the remedy lies in suitable parliamentary legislation for the purpose preserving the independence of judiciary free from likely executive influ- ence while providing a proper and adequate machinery for investigation into allegations of corruption against such constitutional functionaries and for their trial and punish- ment after the investigation. 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, since the Act was not intended to apply to them. The test of applicability of the existing law would be the legal sanc- tion 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 exist- ing 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 craftmanship, but a naked usurpation of legislative power in a virgin field.

It appears that the framers of the Constitution, while dealing with such constitutional functionaries, contemplated merely their removal from office in the manner provided in Article 124(4) as the only punishment; and a special law enacted by the Parliament under Article 124(5), even for investigation and proof of any misbehaviour alleged against a superior Judge instead of the general law was clearly visualised when the alleged misbehaviour is connected with his office. A charge of corruption against a superior Judge amounting to criminal misconduct by abuse of his office would certainly fail within the ambit of misbehaviour con- templated under Article 124(5), since misbehaviour of a Judge in the form of corruption by abuse of his office would be an act of gross misbehaviour justifying his removal from office, irrespective of other legal sanction, if any, to punish a corrupt Judge. It cannot be imagined that the framers of the Constitution provided for removal of a supe- rior Judge on lesser grounds of misbehaviour but nor for the gross misbehaviour of corruption. There is no escape from the conclusion that the gross misbehaviour of corruption of a Judge must undoubtedly fall within the ambit or Article 124(5) justifying his removal in the manner provided in Article 124(4). Article 124(5) con- templates a special law enacted by the Parliament even for investigation into any allegation of misbehaviour which must include an allegation of corruption. Can it, therefore, be said that while investigation into the allegation of corrup- tion for the purpose of removal under Article 124(4) needs a special law made by the Parliament under Article 124(5), it is not so for his prosecution which can be made under the provisions of the existing Prevention of Corruption Act? It appears that the framers of the Constitution did not contem- plate the need for prosecution of a Judge at that level and expected that a superior Judge would resign if faced with credible material in support of allegations of misbehaviour, and in case he did not resign, his removal under Article 124(5) would be sufficient to deal with the situation. The need for his prosecution was not visualised and, therefore, not provided for in the existing law. The Act had already been made when the Constitution was framed and the amendment made in the Act in 1964 was after the experience for some time of the functioning of the judiciary under the Constitu- tion. It is significant that even the Judges (Inquiry) Act, 1968, was enacted under Article 124(5) of the Constitution much later and after the 1964 amendment of the Act. The fact that the Parliament did not enact any other law even then for 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 punishment on the charge of corruption of a superior Judge, except by his removal from office in the manner prescribed. It may also be noticed that 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 is held applicable to them, then there would be two separate procedures under these two enactments providing for investigation into the same charge. Can this anomaly and incongruity be attributed to a conscious act of the Parliament while enacting the Judges (Inquiry) Act, 1968, after the 1964 amendment in the Act.

Maybe, need is now felt for a law providing for trial and punishment of a superior Judge who is charged with the criminal misconduct of corruption by abuse of his office. If that be so, the Parliament being the sole arbiter, it is for the Parliament to step in and enact suitable legislation in consonance with the constitutional scheme which provides for preservation of the independence of judiciary and it is not for this Court to expand the field of operation of the existing law to cover the superior Judges by usurping the legislative function of enacting guidelines to be read in the existing law by impli- cation, since without the proposed guidelines the existing legislation cannot apply to them. Such an exercise by the Court does not amount to construing an ambiguous provision to advance the object of its enactment, but would be an act of trenching upon a virgin field of legislation and bringing within the ambit of the existing legislation a category of persons outside it, to whom it was not intended to apply either as initially enacted or when amended later. In this context, it would not be out of place to mention that this unfortunate situation has also another dimension. The framers of the Constitution had visualised that the constitutional scheme for appointment of the superior Judges would ensure that by an honest exercise performed by all the constitutional functionaries of their obligation in the process of appointment of a superior Judge, there would be no occasion to try and punish any appointee to such a high office for an act of corruption. Appointment of superi- or Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that age the personality is fully developed and the propensities and background of the appointee is well known. The collec- tive wisdom of the constitutional functionaries involved in the process of appointing a superior Judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. In the case of any late starter or an exception, the power of removal in accordance with Article 124(4) by adopt- ing the procedure prescribed under Article 124(5) was ex- pected to be sufficient to eradicate the exceptional menace while preserving independence of the judiciary. If this scheme is found to be inadequate in the present context, it is also indicative of the failure of the constitutional functionaries involved in the process of appointments in fulfilling the confidence reposed in them. It is not unlike- ly that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. The need for such legislation now would, therefore, not be entirely on account of the absence of it so far, but also due to the failure of proper discharge of this consti- tutional obligation and not any defect in the constitutional scheme. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious impli- cations of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appoint- ment can be made even if sometime a good appointment does not go through. This is not difficult to achieve. The work- ing of the appointment process is a matter connected with this question and not divorced from it. most often, it is only a bad appointment which could have been averred that gives rise to a situation raising the question of the need of such a law. Due emphasis must, therefore, be laid on prevention even while taking curative measures.

It is a sad commentary on the working of the appointment process and the behaviour of some of the appointees which has led to this situation. The confidence reposed in them by the framers of the Constitution has been betrayed to this extent. It was expected that the superior Judges who were constituted into a different class and created as superior morally not needing the deterrence of such a law to punish them would be alive to the need of a high code of conduct regulating their behaviour justifying the absence of such a law for them. It was reasonable to further expect that the aberrations, if any, in their rank would be subject to the moral and social sanction of their community ensuring that they tread the right path. The social sanction of their own community was visualised as sufficient safeguard with im- peachment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the community has been waning and inade- quate of late. If so, the time for legal sanction being provided may have been reached. No doubt for the judicial community in general it would be a sad day to become suspect needing such a legislation to keep it on the right track. However, that is the price the entire community has to pay if its internal checks in the form of moral and social sanction are found deficient and inadequate to meet the situation which legal sanction alone can prevent. It is for the Parliament to decide whether that stage has reached in the superior judiciary when legal sanction alone can be the remedy for maintenance of public confidence in the integrity of the superior judiciary without which independence of the judiciary would itself be in jeopardy.

The view that Judges of the High Courts and the Supreme Court are outside the purview of the Prevention of Corrup- tion 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 exercise. The patchwork of proposing guidelines suggested by the learned Solicitor General apart from being an impermissible judicial exercise, also does not present a complete and harmonious picture and fails to provide answers to several obvious querries which arise. The inescapable conclusion, therefore, is that the Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court. Juris- prudentially this conclusion need not be anathema as stated in 46 Am. Jur. 2d. s. 84:–

“In the absence of a statute, misfeasance of a judicial officer is not a criminal offence, impeachment being the exclusive remedy.”These words summarise the true legal position in the case of superior Judges who are separately classified in the consti- tutional scheme itself.

There is nothing strange about the above view since the scheme in some other countries also appears to be the same. In recent years in some countries, there were instances which provoked a strong debate on the subject and different remedies were advocated to deal with the situation. It may be mentioned that instances of punishment for corruption in earlier centuries including the indictment of Lord Bacon is not apposite for the reason that the situation then was not akin to the scheme in the Indian Constitution for the judges of the High Courts and the Supreme Court and the protection given to them for ensuring the independence of judiciary. As indicated earlier, while adopting curative measures for the malady, a renewed emphasis on its prevention in the future has to be borne in mind. In this context, it is useful to recall the high esteem in which the higher judici- ary was held by the prime builders of our nation in its nascent stage. In a letter dated 18th December, 1947, to the Prime Minister, Pt. Jawaharlal Nehru and the Deputy Prime Minister, Sardar Vallabhbhai Patel, the first Chief Justice of free India said:

“Under the Constitution Act, provi- sions can be made for the appointment, the salary, pension, leave and removal of the judges. In addition to that, I think it will be desirable to insert a provision under the Act, or to frame statutory rule under the Act, defining the relations between the judiciary and the executive. All communications in respect of the appointments and the griev- ances, if any, of the judges should come from the Chief Justice of the provincial High Court, through the Governor and not through the Home Department of the province. I recog- nise that the Governor-General or the Presi- dent, who will be an elected person, will have to consult the Cabinet according to the Rules of Business framed for working the Central Government. It seems to me, however, fundamentally essential that the High Courts, the Federal Court and the Supreme Court (when established) should not be considered a part of, or working under, any department of the executive Government of India. It should be an independent branch of the Government in touch directly with the GovernorGeneral or the President of the Dominion of India. I am sure the Cabinet will agree to the principle of keeping the judiciary free from the control of the executive. The duty and credit for maintaining this high tradition is on the Government in existence when the’Constitution and the statutory rules are framed, and I have written this to you confi- dently hoping that you share my desire to safeguard the dignity and independence of the judiciary and will do the needful in the matter.”Sardar Vallabhbhai Patel promptly replied to the Chief Justice of India saying ‘your views will be very helpful to us in dealing with the subject.’ (Sardar Patel’s Correspondence, 1945-50, edited by Durga Das, Vol. VI, pp. 274-76) The framers of the Constitution had visualized the higher echelons of the judiciary as comprised of men of strong moral and ethical fibre who would provide moral leadership in the society of free India and function as the sentinel of the other wings of the State not needing scruti- ny themselves. Our Constitution provides for separation of powers of the three wings of the State with judicial review as one of the essential tenets of the basic structure of the Constitution. It is thus the judiciary which is entrusted with the task of interpretation of the Constitution and ensuring that the other two wings do not overstep the limit delineated for them by the Constitution. With this duty entrusted to the higher judiciary, it was natural to expect that the higher judiciary would not require any other agency to keep a watch over it and the internal discipline flowing from the moral sanction of the community itself will be sufficient to keep it on the right track without the re- quirement of any external check which may have the tendency to interfere with the independence of the judiciary, a necessary concomitant of the proper exercise of its consti- tutional obligation. It is for this reason that 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 for removal in accordance with clause (4) of Article 124 was made, the difficulty 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 he 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. Obviously, this position continued even during the delibera- tions of the Santhanam Committee which clearly mentioned inits Report submitted in 1964 that it has considered the judiciary outside the ambit of its deliberations. Clearly, it was expected that the higher judiciary whose word would be final in the interpretation of all laws including the Constitution, will be comprised of men leading in the spirit of self-sacrifice concerned more with their obligations than rights, so that there would be no occasion for anyone else to sit in judgment over them. 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 legislation for that purpose providing for said guards to ensure independence of judiciary since the exist- ing law does not provide for that situation. 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 me, in all humility, an exercise to fit a square peg in a round hole when the two were never intended to match. I would, therefore, allow the appeal even though by the majority view it must fail.

ORDER In view of the majority judgments, the appeal is dismissed.


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

Lawyers :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.


 

Kamini Jaiswal Vs. Union of India & ANR[SC 2017 NOV]

KEYWORDS: FORUM SHOPPING-FORUM HUNTING BY SENIOR LAWYER

Capture

  • It is not obligatory for this Court to give reasons for dismissing the writ petition. Day in and day out in countless cases, while refusing to interfere with the orders this Court dismisses the petitions be they filed under Article 32 or 136 of the Constitution in limine.
  • In view of the decision of Constitution Bench of this Court, which expounds that the Hon’ble Chief Justice of India has the prerogative to constitute a Bench, notwithstanding any judicial order passed to the contrary. As a matter of fact, there is no question of applicability of Article 144 or 142 in this case. In case they are attracted, it is the decision of the Constitution Bench that is binding on all concerned, as the precise question has been dealt with by the Constitution Bench of this Court in the aforesaid case of CJAR.

ACTS: Section 8 and Section 120 B of the Prevention of Corruption Act, 1988

DATE: November 14, 2017

BENCH:  (R.K. Agrawal)  (Arun Mishra)  (A.M. Khanwilkar)


SUPREME COURT OF INDIA

Kamini Jaiswal Vs. Union of India & ANR.

[Writ Petition (Criminal) No.176 of 2017]

1. The facts are disturbing in the instant case. By moving two successive petitions, one on Wednesday (8.11.2017) and the other on Thursday (9.11.2017), identically worded similar petitions, one by the Commission for Judicial Accountability and Reforms (CJAR) and the other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member of CJAR. Both the petitions are identically worded.

The petition filed on Wednesday was to be listed on Friday (10.11.2017) before a Bench presided by Hon’ble A.K. Sikri and Ashok Bhushan, JJ. As stated by Shri Prashant Bhushan, one of the counsel representing the petitioner, the said fact was informed to him by the Registry of the Court on 1 8.11.2017. Learned counsel further states that as the petition had not been listed before same Bench which ordered its listing for Friday, i.e. Court No.2, it became necessary to file the present second petition i.e. W.P. (Crl.) No.176/2017 by Ms. Kamini Jaiswal, Advocate of this Court.

2. A prayer was made to Court No.2 to hear the matter on the same day; urgency in the matter had been urged by Shri Dushyant Dave, learned senior counsel, who mentioned the matter. Order dated 9.11.2017 passed by Court No.2 is extracted hereunder : “Issue notice. Dasti, in addition, is permitted. This matter was taken on Board upon being mentioned in the morning at 10.30 a.m. On an inquiry from the Bench regarding the urgency in the matter, it was brought to the notice of the Court that a certain case is registered by the Central Bureau of Investigation against a retired High Court Judge of this country containing serious allegations implicating the said Judge, shown as an accused in the FIR No. 10(A) under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The FIR contained certain allegations which are disturbing.

The allegations pertain 2 to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately. Therefore, permission was granted to move the matter today at 12.45 p.m. before this Court. Accordingly the papers are placed before us at 12.45 p.m. Mr. Dushyant Dave, learned senior counsel makes submissions highlighting various aspects of the matter, the details of which we do not propose to make in this order. But, at the same time, we are also duty bound to place the developments that when the hearing of the matter was in progress, the Officer of the Registry placed a xerox copy of the proceedings purportedly issued by Hon’ble the Chief Justice of India, a copy of which is annexed to this Order.

Having regard to the totality of the circumstances, we deem it appropriate that this matter be heard by the Constitution Bench of the  first five Judges in the order of seniority of this Court. Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, the 13th November, 2017.

Having regard to the nature of the case, it is also necessary to make an interim order regarding the custody of the case diary and all the materials collected by the second respondent during the course of the investigation of the above-mentioned crime. We, therefore, deem it appropriate to direct the second respondent to produce the entire material collected by the CBI in the course of the investigation of the crime and keep it in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017. Communicate this order to the second respondent forthwith.”

3. In the other matter, i.e. W.P. (Crl.) No.169/2017, filed by CJAR, which was listed before a Bench presided by Hon’ble A.K. Sikri, J., following order was passed by the Bench on Friday, the 10th November, 2017 : “Mr. Prashant Bhushan, learned counsel has brought to our notice order dated 09.11.2017 passed in W.P.(Crl.) No.176/2017 referring the matter to the Constitution Bench. Let the matter be placed before Hon’ble the Chief Justice for passing appropriate orders for listing this matter. Mr. R.S. Suri, senior advocate/President, Supreme Court Bar Association (SCBA) submits that SCBA also wants to get itself impleaded as a party respondent and render assistance. On an oral request of Mr. Suri, the prayer is allowed and the SCBA is impleaded as a party respondent.”

4. In the writ petitions, a prayer has been made to constitute a Special Investigation Team (SIT), headed by retired Chief Justice of India, to investigate the offences arising out of FIR being RC.10(A)/2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and those connected therewith and take consequential action thereafter in accordance with law. A prayer was also made to direct the CBI, to produce before this Court for its perusal and, preserve and protect, all evidences/materials collected so far and hand over all the materials/evidences collected so far in the FIR to the SIT to be constituted by this Court.

5. It has been averred in the petitions, filed under Article 32 of the Constitution of India, that the FIR, relating to criminal conspiracy and of taking illegal gratification to influence the outcome of a pending case before this Court, reveals a nexus between the middlemen, Hawala dealers and senior public functionaries, including persons in the judicial field. The FIR has been registered with respect to case of Prasad Education Trust at Lucknow. The medical college set up by the Trust was debarred by the Government from admitting students for the years 2017-18 and 2018-19. The FIR lodged by the CBI names a retired Judge of the High Court as an accused, who had allegedly been negotiating through a middleman to get a favourable order in the petition pending before this Court.

The said petition was heard by a Bench headed by Hon’ble Chief Justice of India. Thus, taking this as a pretext, in the instant petition, it has been averred, that the FIR casts a cloud on the judiciary at the highest level. Thus, the prayer has been made that, investigation in relation to aforesaid FIR should be handed over to an SIT headed by a retired Chief Justice of India and not left to the agency controlled by the Government; with the averment that in order to restore the confidence of the public in the judiciary, the agency controlled by the Government should not be allowed to undertake the said investigation.

It is further averred in the petition, that since the matter had been heard by a Bench presided over by Hon’ble Chief Justice of India, propriety demands that the Hon’ble Chief Justice of India ought not to deal with the present petition either on the judicial side, or even on the administrative side. Therefore, present petition can neither be heard by a Bench presided by the Hon’ble Chief Justice of India, nor can it be assigned to any other Bench by Hon’ble Chief Justice of India in his administrative capacity. Further, that the petitioner has not made any representation to the respondent; because of the extreme urgency in the matter, the writ petition has been filed. The FIR dated 19.9.2017 has been placed on record as Annexure P1.

6. It is further averred, that the College had been granted permission on 20.8.2016 by the Oversight Committee of the Medical Council of India; on failure to fulfill certain conditions, it got debarred from admitting the students for two academic sessions i.e. 2017-18 and 2018-19 as infrastructure and other facilities were found to be deficient. W.P. (C) No.442/2017 was filed in this Court, which was connected with WP (C) No.411/2017 in which an order was passed on 1.8.2018, to provide an opportunity of hearing to the petitioner(s) in that case and thereafter to pass a reasoned decision de novo. Hearing was granted, and the 5 Hearing Committee of the Government agreed with the aforesaid decision of the Ministry, not to permit the college for two years.

Another writ petition was thereafter, filed in this Court by the said Prasad Education Trust; it was withdrawn on 24.8.2017, with liberty to move the Allahabad High Court. Thereafter, a writ petition was filed on 25.8.2017 in the High Court at Allahabad; an order was passed on 25.8.2017 itself that the College shall not be delisted from the list of colleges notified for counseling till the next date of listing i.e. 31.8.2017.

The Medical Council of India (MCI) filed an SLP against the said order which was disposed on 29.8.2017 and permission was sought to file a petition before this Court which was accorded. Petition was filed on 31.8.2017; the case was listed on 11.9.2017; and, this Court ordered on 18.9.2017, that there shall be no renewal for the academic session 2017-18, however, the MCI may inspect again for the session 2018-19. No further order was passed by this Court and accordingly the petition was disposed of. It was for the MCI to take a decision in the matter not only for continuity of provisional letter of permission for academic session 2016-17 and renewal purposes only for 2018-19. No relief was granted for the current academic session 2017-18.

7. On 19.9.2017, an FIR was registered against the following persons in connection with the case :

1. Shri I.M. Quddusi, retired Judge of the High Court of Odisha.

2. Smt. Bhawana Pandey r/o GK. New Delhi (private person)

3. Shri B.P. Yadav (private person) 4. Shri Palash Yadav (private person)

5. Shri Sudhir Giri (Private person)

6. Shri Biswanath Agrawala, r/o HIG – 136, Phase 1, Kanan Vihar, Bhubaneshwar, Odisha (Private person)

7. Other unknown public servants and private persons.

8. It was alleged in the FIR, that Mr. B.P. Yadav had requested Justice I.M. Quddusi and Smt. Bhawana Pandey to get the matter settled in the apex Court through their contacts. They engaged Mr. Biswanath Agarwala, a private person and a resident of Bhubaneswar, Orissa for getting the matter settled in the apex Court. Mr. Biswanath Agrawala claimed that he would get the matter favourably settled. He demanded huge gratification for inducing the public servants by corrupt and illegal means. Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M. Quddusi, Mrs. Bhawana Pandey and Mr. Sudhir Giri were all likely to meet Mr. Biswanath Agrawala for delivering the agreed illegal gratification at Delhi shortly.

The FIR was recorded on 19.9.2017 whereas this Court had already disposed of the matter on 18.9.2017. It is averred in the petition that the case discloses commission of offence punishable under section 8 of the Prevention of Corruption Act, 1988 and section 120B of the IPC against the named persons as well as against the unknown public servants and private persons. It is further averred in the petition that since the matter involves persons placed at the highest echelons of power including justice delivery system and in subsequent raids made by the CBI it has recovered close to Rs.2 crores in cash, the agency has seized Rs.1 crore which the Hawala operator had handed over to an aide of the retired Judge I.M. Quddusi.

9. There was an order passed by a Bench consisting of Hon’ble A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon’ble Chief Justice of India for listing the matter. The matter was considered on administrative side by the Hon’ble Chief Justice of India and he constituted a 5-Judge Constitution Bench which consisted of and presided over by Hon’ble Chief Justice of India. The Constitution Bench answered the question as a piquant situation had arisen for listing the case by judicial order before senior-most 5 Judges in order of seniority passed in the present petition and the aforesaid order dated 10.11.2017 passed in the case of CJAR in WP (Crl.) No.169/2017 by Hon’ble A.K. Sikri, J. There was variance between the orders passed by the two Benches; one by Court No.2 and the other presided over by Hon’ble A.K. Sikri, J.

The order in this case was passed on 9.11.2017 for listing the matter before 5 Hon’ble Judges on Monday i.e. 13.11.2017 and Hon’ble A.K. Sikri, J. requested the Hon’ble Chief Justice of India to constitute an appropriate Bench for hearing the other matter which was similar. The matter was referred to a Constitution Bench of this Court to decide as to what should be done in such a situation as only working day available was 10.11.2017. The Constitution Bench held that the Hon’ble Chief Justice of India is the master 8 of the roster as per the decision of this Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC 1 wherein this Court had laid down thus :

“1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.

(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

X x x x x

(6) That the puisne Judges cannot “pick and choose” any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.”

10. A Constitution Bench of this Court held that what has been laid down in Prakash Chand (supra) would apply proprio vigore as regards the power of the Hon’ble Chief Justice of India. Though the Hon’ble Chief Justice is the first among equals as far as the roster is concerned, the Hon’ble Chief Justice of India has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.

Following observations have been made by the Constitution Bench of this Court : “The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law.

We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief justice of india as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench.

We reiterate such an order cannot be passed. It is not countenanced in law and not permissible. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand (supra), which was stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.”

11. The order passed by the Division Bench of this Court on 9.11.2017 in this matter has been rendered ineffective and the Hon’ble Chief Justice of India has constituted 3 Judge Bench to hear the matter on 13.11.2017. Thus it has been heard by the Bench as formed by Hon’ble Chief Justice of India

12. It was urged by Shri Shanti Bhushan, learned senior counsel, and Mr. Prashant Bhushan, learned counsel for the petitioner, that, this Bench could not 10 hear the matter, as it has been constituted by Hon’ble Chief Justice of India. The order passed by a Constitution Bench of this Court on 10.11.2017, in the case of CJAR, that Hon’ble Chief Justice of India would assign the present matter to an appropriate Bench – that pronouncement cannot be made by a judicial order; that order cannot hold the field. The order dated 9.11.2017 passed by Court No.2 should prevail, and the matter is required to be heard by the 5 senior-most Judges of this Court in the order of seniority.

A judicial order cannot be violated, and it could not have been rendered ineffective by the Constitution Bench decision of this Court dated 10.11.2017. Prayer was also made that though there is no allegation against one of the Hon’ble Judges comprising this Bench (one of us) as Hon’ble A.M. Khanwilkar, J. was a member of the Bench which disposed of the matter of Prasad Education Trust vide order dated 18.9.2017, he should recuse from the matter. No written application has been filed for his recusal from hearing. Ms. Kamini Jaiswal has also submitted certain points for consideration in writing in which, it has been urged, that the whole intention and objective of the petition was, and is, to protect the independence, integrity and reputation of the Institution, the Supreme Court, by seeking constitution of SIT headed by retired Chief Justice of India.

Further, not even a single allegation has been made against any member of the judiciary, leave alone the Hon’ble Chief Justice of India or any Supreme Court Judge. Explanation has been given as to how a member of CJAR could file a petition even when her organization had filed a similar petition before; submitting that a member of the organization is entitled to exercise right separately in her own right to file a petition separate from the organization. Further, that Article 144 of the Constitution renders it impermissible for a different Bench of the Supreme Court, even if it is a Bench of the Hon’ble Chief Justice of India, to overrule an order passed by another Bench of the Supreme Court, as orders passed by the Supreme Court are binding, under Article 144 of the Constitution, even upon the Hon’ble Chief Justice of India and other Benches of the Supreme Court as held in Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 388. She has reiterated that Hon’ble Khanwilkar, J. ought to have recused himself from hearing this case as he was one of the Judges hearing the matter relating to medical bribery scam alleged in the FIR registered by the CBI.

13. It was submitted by Shri K.K. Venugopal, learned Attorney General for India, appearing in his official capacity, that such a petition as the present one cannot be entertained. The petitioner has unnecessarily cast doubt on the entire system. If an unscrupulous person does or says anything irresponsible and illegal, and demands a bribe in the name of a Judge, the whole system cannot be brought under disrepute. There is absolutely no material to link the highest judiciary of the country with the so called act of Retired Justice I.M. Qudussi and the persons 12 named in the FIR. Thus the petition being wholly unnecessary, deserves to be dismissed. Better it was that not to prefer such a petition. He has relied upon the decision rendered by the United States Supreme Court, in the case of Bradley v. Fisher 80 US 335 (1871).

It has been held thus:

“12. Some just observations on this head by the late Chief Justice Shaw, will be found in Pratt v. Gardner, [ 2 Cushing, 68.] and the point here was adjudged in the recent case of Fray v. Blackburn, [ 3 Best & Smith, 576.] by the Queen’s Bench of England. One of the judges of that bench was sued for a judicial act, and on demurrer one of the objections taken to the declaration was, that it was bad in not alleging malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declaration by introducing an allegation of malice and corruption; but Mr. Justice Compton replied: ‘It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good.

The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent them being harassed by vexatious actions;’-and the leave was refused. [ In Scott v. Stansfield (3 Law Reports, Exchequer, 220), a judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant.

To this plea a replication was filed, that the words were spoken falsely and maliciously, and without any reasonable, probable, or justifiable cause, and without any foundation whatever, and not bon a fide in the discharge of the defendant’s duty as judge, and were wholly irrelevant to the matter before him. To the replication the defendant demurred; and the Court of Exchequer held the demurrer well taken. ‘I am of opinion,’ said the Chief Baron, ‘that our judgment must be for the defendant.

The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character, and in the exercise of his functions as judge in the court over which he presides, where such words would as against an ordinary individual constitute a cause of action, and where they are alleged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him.

The question arises, perhaps, for the first time, with reference to a county court judge, but a series of decisions uniformly to the same effect, extending from the time of Lord Coke to the present time, establish the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice. This doctrine has been applied not only to the superior courts, but to the court of a coroner, and to a court martial, which is not a court of record.

It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.”

14. Shri Tushar Mehta, learned Additional Solicitor General, appearing on behalf of the Government of India, has submitted, that it was wholly improper to file two successive petitions in this Court seeking similar relief. No disclosure has been made in the second petition about filing of the earlier petition for the same cause of action and reliefs. Similar petitions with the same set of Advocates were filed and unfortunately the prayer was made on both days by Shri Dushyant Dave, learned senior counsel of this Court to list the matters, and such successive petitions identically worded could not have been filed in this Court. It was clearly a case of forum hunting. The fact that case of CJAR was already listed before a Bench presided by Hon’ble A.K. Sikri, J., it was highly improper to file another petition and seek its hearing by Court No.2 on the said very day i.e. 9.11.2017 at 12.45 p.m.

There was no tearing urgency in the matter to do so. Unnecessarily, the Institution has been brought to be scandalized for no good cause. The petition and entire conduct aims at bringing disrepute to this Court without any rhyme or reason. The President of the Supreme Court Bar Association (SCBA), Mr. Suri, was also present. They have submitted that the SCBA has already placed its point of view while its case was heard by a Constitution Bench of this Court, in that they have opposed filing of such petitions. That petition brings disrepute to this Court, and it was a contemptuous act. Their stand was that, such petition ought not to have been preferred and, action be taken against the concerned individuals.

15. Firstly, we consider the question whether we can hear the matter as the Bench has been formed by Hon’ble Chief Justice of India in exercise of his administrative power. That issue stands concluded by the decision of 5-Judge Bench of this Court. The Constitution Bench of this Court has clearly held that Hon’ble Chief Justice of India is the master of the roster, and any order which had been passed contrary to the order of the Constitution Bench, was held to be ineffective in law, not binding on the Hon’ble Chief Justice of India. The Hon’ble 15 Chief Justice of India has constituted a Bench on administrative side after the aforesaid decision of this Court in which, this precise question, as to the competence of the Chief Justice to constitute a Bench, has been decided; as such, the submission made by Shri Shanti Bhushan, learned senior counsel, is hereby rejected. We cannot reopen this issue. The decision is binding.

16. It was submitted, that Article 144 of the Constitution of India binds this Court and, renders it impermissible, for any other Bench of the Supreme Court, even if it is a Bench presided by Hon’ble Chief Justice of India to overrule an order passed by another Bench of the Supreme Court. All orders passed by the Supreme Court are binding under Article 142 of the Constitution of India, even upon the Chief Justice of India and other Benches of the Supreme Court, as held in Rupa Ashok Hurra (supra). The submission so raised is totally devoid of substance, as a Constitution Bench of this Court has decided the question that no such order, constituting a particular Bench, can be passed; that would include the order dated 9.11.2017, passed by Court No.2, in WP (Crl.) No.176/2017.

It cannot hold the field in view of the decision of Constitution Bench of this Court, which expounds that the Hon’ble Chief Justice of India has the prerogative to constitute a Bench, notwithstanding any judicial order passed to the contrary. As a matter of fact, there is no question of applicability of Article 144 or 142 in this case. In case they are attracted, it is the decision of the Constitution Bench that is binding on all concerned, as the precise question has been dealt with by the Constitution Bench of this Court in the aforesaid case of CJAR.

17. An unprecedented situation has been created by the judicial order dated 9.11.2017. The present petition was filed on 9.11.2017, a similar petition, filed by CJAR, had been mentioned on 8.11.2017 by same set of counsels before Court No.2 as the Hon’ble Chief Justice of India was presiding the Constitution Bench. Obviously, mentioning could have been made before Court No.2; but, when mentioning had been done in a similar matter filed by CJAR by Mr. Dushyant Dave, learned senior counsel and Mr. Prashant Bhushan, learned counsel, as is apparent from the order of mentioning, and the case had been ordered to be listed on Friday, i.e. 10.11.2017, and the petition filed by CJAR was listed before the Bench of Hon’ble Sikri, J., to file and mention this similarly worded identical petition on the next day with a similar relief; it was mentioned, by one of the same senior counsel, Mr. Dushyant Dave, before Court No.2, requesting to take it up on the same day. That clearly amounted to forum hunting.

There was absolutely no urgency in the matter to make the mention again by filing the petition on 9.11.2017 itself. They wanted the matter not to be heard by another Bench of this Court presided by Hon’ble A.K. Sikri, J. Reasons were asked for by us as to why two petitions were filed. Shri Prashant Bhushan, learned counsel has explained the filing of second petition thus : that the Registry had informed him that the matter 17 was not to be listed before Court No.2 on Friday, but before Hon’ble A.K. Sikri, J., as per the administrative instructions of Hon’ble Chief Justice of India. Therefore, fresh petition was filed by Ms. Kamini Jaiswal. This could not have been the valid reason to file a fresh writ petition identically worded as suggested by Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner though Ms. Kamini Jaiswal, learned counsel, in the written note, which she has submitted after hearing was over, has tried to explain that a member of an organization is entitled to exercise her right to file a petition separately from the organisation. Be that as it may.

Even if petition could have been filed, being, arguendo, within the right of a member of an organisation to file such separate petition, but, there could still not have been any forum hunting in the method and manner it has been done to create ripples in this Court, by indulging in this exercise of filing the second petition on the very next day, thereafter, mentioning it on the same day, for the member to exercise her right. Even the petitioner is member of organization CJAR is not relevant or material but the fact remains that similar identically worded petition has been filed by petitioner. It was not proper to request Court No.2 to take up the matter when the other matter filed by CJAR was coming up on Friday before another Bench. At the most the prayer could have been to list the said petition along with the matter filed by CJAR which was coming up for hearing on Friday, 10.11.2017 before Hon’ble Sikri, J.

18. Prayer has been made before us that Hon’ble Chief Justice of India should not have assigned the matter to 3-Judge Bench, and there was a judicial order of formation of Bench of 5 Judges in order of seniority which would include Hon’ble Chief Justice of India also. On the one hand, the judicial order included Hon’ble the Chief Justice of India to hear this matter on merits while, on the other hand, prayer is being made in the application filed today i.e. i.e. 13.11.2017 as well as by learned counsel appearing on behalf of the petitioner that Hon’ble the Chief Justice of India should neither hear the matter, nor assign it on the administrative side. There is a contradiction in the order passed by Court No.2 on 9.11.2017 and in their submission.

19. As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him. This has not only been settled by the Constitution Bench in CJAR (supra) vide aforesaid order dated 10.11.2017 but, this question also arose in the matter of Dr. D C Saxena v. Chief Justice of India (1996) 5 SCC 216, decided by a 3-Judge Bench of this Court wherein, the petitioner Dr. D C Saxena, filed a public interest litigation which was heard by Hon’ble Chief Justice of India and two other Judges. The then Chief Justice of India and the two other Judges summarily dismissed the petition which triggered the petitioner to file another petition; that got posted before a Bench of 3 19 Judges. Scandalous averments were made in the petition against the Hon’ble Chief Justice of India.

The second writ petition was also dismissed and, thereafter, this Court issued a show cause notice after dismissing the writ petition as to why contempt proceedings should not be initiated against him, as the persistent contumacious conduct of the petitioner had been to scandalize the court. It was submitted by the petitioner that contempt could not be initiated as the constitution of the Bench by the Chief Justice of India was in violation of principles of natural justice as no one can be a Judge in his own cause. The often cited proposition that, Justice should not only be done but should manifestly and undoubtedly seem to have been done, and that nothing is to be done which creates a suspicion that there has been improper interference in the course of justice, had been raised by the petitioner in an unsuccessful attempt to take refuge under these propositions for his conduct. In spite of the objection Hon’ble Chief Justice of India not to constitute a Bench, the Chief Justice of India chose to constitute a Bench, with the Hon’ble Chief Justice himself as the presiding Judge. According to the petitioner the order passed by the Bench of Hon’ble Chief Justice of India was required to be ignored. This Court has laid down that the assertion that the first writ petition was not dismissed in the eye of law, tends to question the authority of the court. This Court has observed thus :

“51. It would, thus, be seen that when the first writ petition was dismissed by this Court, as a responsible citizen, the petitioner should have kept quiet. When the result animated by the petitioner was not achieved, he embittered to foul at the process of this Court and emboldened to file the second writ petition with imputation made against this Court, in particular targeting the Chief justice of india, Justice A.M. Ahmadi. As stated hereinbefore and need not be reiterated once over that it is the duty of the Court to hear and decide any matter posted for admission.

Therefore, there is nothing improper for the first Court presided over by the Chief justice of india to hear and decide the matter. When it came up for admission, the Court appears to have been persuaded to ascertain the correctness of the allegations made in the writ petition. This Court obviously before issuing notice had sent for and directed the Solicitor General to obtain the information from the Government as to the correctness of the allegations made before deciding whether the Court would exercise its prerogative power under Article 32 to issue directions as sought for.

In furtherance thereof, the Solicitor General admittedly placed before the Court the record. On perusal thereof, the first Court had declined to exercise the power as enumerated and obviously stated by the petitioner that the exercise of the power under Article 32 was not appropriate since the Government in the Defence Department could recover from the Prime Minister’s Secretariat or from the Congress Party, as the case may be, all the arrears, if any, due and payable by the respective entities.

It is not obligatory for this Court to give reasons for dismissing the writ petition. Day in and day out in countless cases, while refusing to interfere with the orders this Court dismisses the petitions be they filed under Article 32 or 136 of the Constitution in limine. It is also seen that though the case was adjourned for two weeks, no doubt, it was not posted on that day but it was listed sometime thereafter. In the proceedings of the Court recorded by the staff, it was recorded that the Solicitor General for India appeared in the Court in his official capacity. Shri Dipankar Gupta as Solicitor General or in personal capacity obviously acted as amicus on behalf of the Court.

Being the Solicitor General for India, he was directed to have consultation with Government Departments and to obtain needed information. In appropriate cases this procedure is usually adopted by the Court. Recording of the proceedings by the Court generally is not noted by the Court. Is it improper for the Chief Justice to hear the case? Was the dismissal totally unjust and unfair for not recording the reasons?

The petitioner obviously with half-baked knowledge in law mixed up the language as “improper for Chief justice of india to hear it”, “Dismissal of the ‘grouse’ of the petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant violation of mandate of Article 14”, “Violation of the sacred oath of office” and to “declare Justice A.M. Ahmadi unfit to hold the office as Chief justice of india”. When these imputations were pointed out to the petitioner by a three-Judge Bench presided over by brother Verma, J. while dismissing the second writ petition, to be scandalous and reckless, he had stated that he “stood by” those allegations. He reiterated the same with justification in his preliminary submissions. He has stated that the accusations made were truthful and ‘carefully’ worded.

In this backdrop scenario, the effect of these imputations is obviously reckless apart from scandalising this Court, in particular the Chief justice of india and was intended to foul the process of the Court or lower or at any rate tends to lower the authority of the Court in the estimate of the public and tends to undermine the efficacy of the judicial process. It would, therefore, be clear that the accusations are gross contempt. At the height of it, he stated that since the first writ petition was not disposed of by a Bench of not less than five Judges, the writ petition was not dismissed in the eye of law and the order of dismissal is non est and it is “not decided and disposed of constitutionally”. This assertion of the petitioner flies in the face of the judicial finality of the order of this Court and the assertion tends to question the authority of the Court. It creates tendency to obstruct the administration of justice and, therefore, it would be an outrageous criminal contempt.”

20. This Court also considered the allegation whether the Chief Justice could not constitute the Benches, where imputations were made against him; this was also held aggravate the contempt. This Court has laid down that when imputations were made against the Chief Justice, it is the prerogative of the Chief Justice to constitute the Benches and assign judicial business, and it would not hinge on the whim of the litigant.

This Court has observed :

“26. When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that the CHIEF JUSTICE OF INDIA cannot constitute benches nor should he discharge the functions of Chief Justice until the matter is decided. On appointment by the President by a warrant and on his taking oath of office, the CHIEF JUSTICE OF INDIA becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra-position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant.

27. The decisions of different benches are the decisions of the Court. For the convenient transaction of business, the senior Judge among the members composing the bench gets the privilege to preside over the bench but the decision is that of the Court. The members composing the bench collectively speak for the Court and would bear collective responsibility for the decision unless separate opinions are expressed by individual members composing the bench. Majority opinion is the law as envisaged under Article 145(5) of the Constitution. Their opinion or order thus is the opinion or order of the Court. The minority opinion also would form part of the judgment or order but remains the minority view. The Chief Justice is first among the colleagues.”

“52. Omission to record reasons, according to the petitioner, is violative of the principles of natural justice. The Chief justice of india has committed impropriety in deciding the matter. As stated earlier, the decision is that of the Bench on behalf of the Court and the Chief Justice, being the seniormost among the members constituting the Bench, had spoken on behalf of the Bench. Therefore, the attribution of improper motives scandalises the efficacy of judicial adjudication and per se contumaciously lowers or at any rate tends to lower the dignity or authority of the Court. The prayer for prosecution of the Chief Justice, though sought in Item 14(a) and (d) to be withdrawn, which would be of no consequence, is, therefore, unbelievably outrageous contempt.

61. Item 13 relates to the interference with the judicial management of the Court and the duty of a Judge. When an accusation is made against the presiding Judge, by implication, until the matter is decided, the Presiding Officer has to desist from discharging the judicial duties by his proceeding on leave and the seniormost puisne Judge would assume the office of the Chief Justice. This is a deliberate interference in the judicial management tending to sow disaffection in the efficacy of dispensation of justice. The further accusation that the Chief Justice of India should not constitute a Bench of the Judges appointed during his tenure so that “he (Chief Justice of India)” “may not directly or indirectly influence any of the Judges hearing the matter”.

It would, thus, be in unequivocal loud expression that the contemnor attributed motives to the Chief Justice of India that the Judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and would decide the causes by pressure or influence directly or indirectly brought by the Chief Justice of India. Equally, it is a corollary that these Judges are amenable to influence and thereby they do not decide the cases posted before them legally and objectively. The Court is subject to pressures and decides cases under influence. These accusations are flagrantly outrageous to scandalise the Court. Though the contemnor has sought leave to modify this statement, ultimately, in his amended statement, he did not touch upon this aspect of the matter.

In other words, as stated earlier, he stood by his averments calculatedly made. His justification that Justice P.N. Bhagwati (as he then was) decided first S.P. Gupta case when allegations against Chief Justice of India Chandrachud were made has no application. In a judicial proceedings taken by this Court, the office of the Chief Justice of India was directly involved in appointment of additional Judges or extension of their tenure as additional Judges or their transfer. The Chief Justice of India reclused himself from the Bench; resultantly, the senior most puisne Judge came to preside over that Bench. Thus, the contemnor has committed the contempt of this Court under Article 129 of the Constitution.”

21. This Court has also laid down in Dr. D C Saxena (supra) that it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did 24 not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute.

This Court has observed :

“81. It is the duty of the Chief Justice of a court to assign judicial work to his brother Judges. It was, therefore, the duty of the respondent to assign the second writ petition to a Bench to hear it. By doing so he did not, as is alleged, become a Judge in his own cause. It is contempt to imply, as the alleged contemnor does, that the respondent would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that Judges would be so amenable. To plead that the Bench that heard the second writ petition could not have heard it and, therefore, could not have dismissed it and that it is deemed to be still pending is to add to the contempt. These allegations are also aimed at bringing the administration of justice into disrepute.”

22. The submissions so raised, and averments so made, in this petition, and the entire scenario created by filing of two successive petitions, are really disturbing a lot. The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR.

There is no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a Constitution Bench of 5 Hon’ble Judges of this Court in the case of K. Veeraswami v. Union of India (1991) 3 SCC 655 wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the CBI if given publicity, will have a far reaching effect on the Judge and the litigant public. The need, therefore, is of judicious use of action taken under the Act.

There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision. Thus, the instant petitions, as filed, are a misconceived venture inasmuch, as the petition wrongly presupposes that investigation involves higher judiciary, i.e. this Court’s functionaries are under the scanner in the aforesaid case; that independence of judiciary cannot be left at the mercy of the CBI or that of the police is a red herring. There cannot be any FIR even against the Civil Judge/Munsif without permission of the Chief Justice of the concerned court; and rightly, FIR has not 26 been registered against any sitting Judge.

Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardized. No Judge can be held responsible for what may, or has happened in the corridors, or for ‘who purports to sell whom’. The alleged actions of a retired Judge of a High Court, allegedly assuring and promising, a ‘favourable’ decision in the aforesaid circumstances of the case which was then pending before this Court, in the aforesaid circumstances and has assured favourable orders, begs the question, and we wonder, as to what favourable orders have been passed. As is apparent from the aforesaid narration of facts, there was no favourable order granted by this Court in favour of the medical college for the current academic session 2017-18, rather its inspection for considering confirmation of letter of permission for the next year 2018-19 had been ordered.

The decision will be in the hands of the MCI. After decision has been rendered on 18.9.2017 by this Court, an FIR has been lodged and it appears that money was yet to be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely to meet Mr. Biswanath Agarwala for getting favourable order at Delhi shortly; whereas this Court has already decided the mater on 18.9.2017. Thus it is a far fetched and too tenuous to even assume or allege that the matter was pending in this Court for which any bribe was to be delivered to anyone.

23. There is no conflict of interest in such a matter. In case Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision making or indulging in mal practices, it is incumbent upon the Judge to take cognizance of such a matter under Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest but the purpose for which the entire system exists. Such things cannot be ignored and recusal of a Judge cannot be asked on the ground of conflict of interest, it would be the saddest day for the judicial system of this country to ignore such aspects on the unfounded allegations and materials.

It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Hon’ble Chief Justice of India should not hear on judicial side or allocate the matter on the administrative side. It appears that in order to achieve this end the particular request has been made by filing successive petitions day after the other and prayer was made to avoid the Hon’ble Chief Justice of India to exercise the power for allocation of cases which was clearly an attempt at forum hunting and has to be deprecated in the strongest possible words. Making such scandalous remarks also tantamount to interfering with administration of justice, an advocate cannot escape the responsibility on the ground that he drafted the same in his/her personal capacity as laid down in Shamsher Singh Bedi v. High Court of Punjab & Haryana (1996) 7 SCC 99.

In Charan Lal Sahu v. Union of India (1988) 3 SCC 255, this Court has observed that in a petition filed under Article 32 in the form of PIL attempt of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future.

24. In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, this Court observed that there could be ways in which conduct and action of malefactor was professional misconduct. The purity of the court proceedings has to be maintained. The Court does not only have the right but also an obligation to protect itself and can bar the malefactor from appearing before the Court for an appropriate period of time. There is a duty cast upon an Advocate to protect the dignity of this Court not to scandalize the very institution as observed in the said decision.

25. In Leila David v. State of Maharashtra (2009) 10 SCC 337 this Court observed that making of scandalous remarks against High Court Judges and seeking their punishment on the allegation of their being party to genocide petition was dismissed and incumbent was punished. Scandalous allegation cannot be made against the Judges as observed in Amrik Singh v. State (Delhi Admn.) (1971) 3 SCC 215. In Bal Kishan Giri v. State of U.P. (2014) 7 SCC 280 this Court has observed that the allegation that the accused had the links with 3 Judges of the 29 High Court who would favour in getting the bail, this Court held that such allegations are too serious, scandalous and admittedly sufficient to undermine the majesty of law and dignity of the court amounting to contempt. Plea by contemnor a practicing lawyer that he was misguided by another advocate is an afterthought. He must since have been fully aware of the consequence of allegations made by him.

Sentence of simple imprisonment was imposed by the High Court and the same was confirmed by this Court. This Court has also observed that the power for contempt is a rule specified which by very nature calls for exercise with great care and caution and such power ought to be exercised only where silence is nothing but an option. The power to punish for contempt is to secure public respect and care for judicial process.

26. This Court considered various categories of forum shopping in Union of India & Ors. v. M/s. CIPLA Ltd. & Anr. (2017) 5 SCC 262. Even making allegations of a per se conflict of interest require the matter could be transferred to another Bench, has also been held to be another form of forum hunting. This Court has considered various decisions thus :

“146. The learned Solicitor General submitted that Cipla was guilty of forum shopping inasmuch as it had filed petitions in the Bombay High Court, the Karnataka High Court and also an affidavit in the Delhi High Court as a member of the Bulk Drug Manufacturers Association and had eventually approached the Allahabad High Court for relief resulting in the impugned judgment and order dated 3-3-20041. It was submitted that since Cipla had approached several constitutional 30 courts for relief, the proceedings initiated in the Allahabad High Court clearly amount to forum shopping.

147. We are not at all in agreement with the learned Solicitor General. Forum shopping takes several hues and shades and Cipla’s petitions do not fall under any category of forum shopping. 148. A classic example of forum shopping is when a litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia v. Govt. (NCT of Delhi). The respondent mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief.

Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi High Court to the respondent mother was not interfered with.

The decision of this Court is on its own facts, even though it is a classic case of forum shopping.

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao this Court noted that jurisdiction in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.

150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P) Ltd. wherein it was observed that the respondent/plaintiff had made a deliberate attempt to bring the cause of action, namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v. CCE31 the assessee was from Lucknow. It challenged an order passed by the Customs, Excise 31 and Service Tax Appellate Tribunal (“CESTAT”) located in Delhi before the Delhi High Court. Cestat had jurisdiction over the State of Uttar Pradesh, NCT of Delhi and the State of Maharashtra.

The Delhi High Court did not entertain the proceedings initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee’s appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.

152. Yet another form of forum shopping was noticed in Jagmohan Bahl v. State (NCT of Delhi) wherein it was held that successive bail applications filed by a litigant ought to be heard by the same learned Judge, otherwise an unscrupulous litigant would go on filing bail applications before different Judges until a favourable order is obtained. Unless this practice was nipped in the bud, it would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity.

153. Another category of forum shopping is approaching different courts for the same relief by making a minor change in the prayer clause of the petition. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P. it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centred round the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for others with a view to confer jurisdiction on a particular court would also amount to forum shopping by that group of petitioners.

154. Finally and more recently, in Supreme Court Advocates-on-Record Assn. v. Union of India (Recusal Matter) Khehar, J. noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge.

155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.”

27. In view of the aforesaid it is clear that the submission raised that Hon’ble Chief Justice of India should not hear the matter or should not assign it on administrative side is highly improper. In our opinion there was no impropriety in assigning this matter to this Bench rather it was a constitutional imperative as per the mandate of the 5 Judge Bench, Supreme Court Rules, 2013 as well as the decision in Dr. D C Saxena (supra). It was an attempt of choosing a forum by submitting that Hon’ble Chief Justice of India should not have formed the Bench. Even Court No.2 in its order dated 9.11.2017 did not exclude Hon’ble Chief Justice of India from hearing the matter.

28. Yet another disturbing feature which aggravates the situation is that prayer has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the matter. This is nothing but another attempt of forum hunting which cannot be permitted. Rather this kind of prayer was held to be contemptuous, aggravating the contempt in the case of Dr. D C Saxena (supra). This is yet another strategy to succeed in the attempt that the Hon’ble CJI should not take up the matter himself in the judicial side and administrative side for what may apply to and hold good for one of us will be equally applicable to Hon’ble CJI.

Though it was submitted that there is no allegation against Justice A. M. Khanwilkar but since he decided the matter of medical college with respect to which FIR has been lodged, he should recuse. In our opinion, rather it is the duty of the Bench to take up such matter firmly; such unscrupulous allegations and insinuations cannot be allowed to be hurled by oral prayer made on behalf of the petitioner for recusal. This is simply deprecated and we find that it is another attempt to bring the system in disrepute, casting of unwarranted aspersions tantamounts to seriously jeopardizing the independence of the judiciary.

29. Though it is true, that none of us is above law; no person in the higher echelons is above the law but, at the same time, it is the duty of both the Bar and the Bench, to protect the dignity of the entire judicial system. We find that filing of such petitions and the zest, with which it is pursued, has brought the entire system in the last few days to unrest. An effort was made to create ripples in this Court; serious and unwanted shadow of doubt has been created for no good reason whatsoever by way of filing the petition which was wholly scandalous and ought not to have been filed in such a method and manner.

It is against the settled proposition of law. Ultimately after arguing at length, at the end, it was submitted by the petitioner and her counsel that they were not aiming at any individual. If that was not so, unfounded allegations ought not to have been made against the 34 system and that too against the Hon’ble Chief Justice of this country. In case majesty of our judicial system has to survive, such kind of petitions should not have been preferred that too against the settled proposition of law laid down by this Court in the aforesaid decisions of this Court in Dr. D C Saxena (supra) and K. Veeraswami (supra).

30. Submission was also made that unprecedented hearing was done on Friday by a Constitution Bench of this Court. It was a fait accompli and circumstances compelled hearing on 10.11.2017 as on Thursday in this case, order was passed bypassing the power of Hon’ble Chief Justice of India to constitute a 5-Judge Bench in order of seniority including the Hon’ble Chief Justice of India.

It was not permissible as held by this Court in CJAR and hearing of the instant matter was scheduled for Monday, i.e. 13.11.2017, and Friday was the only day available on which the law was required to be settled otherwise judicial order was binding and it was necessary to decide the question as other Bench had requested the Hon’ble Chief Justice of India to assign this matter to an appropriate Bench. As Hon’ble Chief Justice of India had to assign it to a Bench, situation of dilemma was created for Hon’ble Chief Justice of India whether to assign the matter of CJAR to an appropriate Bench or to go by the judicial order by constituting a Bench of 5 senior Judges on 13.11.2017.

Thus as per the judicial order matter was required to be heard on Monday i.e. 13.11.2017. No other working day was intervening on whichthis issue was required to be settled. Thus a Constitution Bench was required to be constituted on the day which was available for deciding the issue so as to decide the issue whether by judicial order case can be assigned to a particular Bench or it is in ambit of power of Hon’ble Chief Justice of India to assign the case. As that issue has been settled by the Constitution Bench decision relying on an earlier decision in the case of Prakash Chand (supra), roster making is the prerogative of Hon’ble Chief Justice of India was laid down in the case of Prakash Chand (supra). Besides the Supreme Court Rules, 2013 also provides that the Hon’ble Chief Justice of India has to assign the case.

The cases cannot be assigned by judicial order. Such judicial order is simply to be ignored as it is not open to the Judges to decide which matter is to be heard by whom as laid down by Constitution Bench. Prayer made that the decision of the Constitution Bench is to be ignored by us, is wholly unfounded and we must go by the order of the Division Bench passed on 9.11.2017 and we should refer the matter to 5 seniormost Judges is preposterous that would include the Hon’ble Chief Justice of India also. The prayer is per se very contradictory in its nature and has no legs to stand. Let the good sense prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great Institution in which public reposes their faith. We deprecate the conduct of forum hunting that too involving senior lawyer  of this Court. Such conduct tantamounts wholly unethical, unwarranted and nothing but forum hunting, as discussed by this Court in the case of Cipla (supra) .

31. On behalf of the petitioner for recusal of Hon’ble A M Khanwilkar, J., reliance has been placed on the decision in Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC 611 in which it has been laid down that reasonableness of the apprehension or bias in the mind of the party has to be seen. We find that there is no room for the petitioner to infer the bias. There is no reasonable basis to pray for recusal of Hon’ble A.M.Khanwilkar, J. In our opinion that tantamount to contempt of court and an attempt at forum hunting. Reference has also been made to the decision in Supreme Court Advocates on Record Association v. Union of India (2016) 5 SCC 808 in which maxim nemo judex in causa sua has been considered, that no man is to be judge in his own cause, should be held sacred and that maxim is not to be confined to a case in which he is a party but applies to a cause in which he has an interest. It is far fetched and too tenuous to submit that any Judge of this Court much less Hon’ble A.M. Khanwilkar, J. has any interest in the subject matter and for that reason in spite of there being no allegation in the writ petition, Shri Justice A. M. Khanwilkar should recuse. There is no room for reasonable suspicion even in remote and argument is simply too derogatory to be made, probably that has been made anyhow or somehow to protect the case and to bring disrepute to this Court. We cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the Benches, as that is a real threat to very existence of the system itself and it would be denigrated in case we succumb to such pressure tactics.

32. The petition is liable to be dismissed and is hereby dismissed.

Prasadi Devi Vs. Nagar Palika Sawai Madhopur (Now Nagar Parishad)[SC 2017 NOV]

KEYWORDS: Suit

Capture

The appellant, instead of examining her Power of Attorney Holder, would personally appear to give her evidence in support of her case.

ACTS:

DATE: November 13, 2017

BENCH: [R.K. AGRAWAL] [ABHAY MANOHAR SAPRE]

HISTORY: An appeal has been  filed by the plaintiff against the final judgment and order dated 16.04.2015 passed by the High Court of Rajasthan at Jaipur in S.B. Civil Writ Petition No.4592 of 2014 u/a 227 , whereby the High Court dismissed the writ petition filed by the appellant herein and affirmed the order of the Trial Court.


SUPREME COURT OF INDIA

Prasadi Devi Vs. Nagar Palika Sawai Madhopur (Now Nagar Parishad)

[Civil Appeal No. of 2017 arising out of SLP (C) No.27333/2015]

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the plaintiff against the final judgment and order dated 16.04.2015 passed by the High Court of Rajasthan at Jaipur in S.B. Civil Writ Petition No.4592 of 2014 whereby the High Court dismissed the writ petition filed by the appellant herein and affirmed the order of the Trial Court.

3. It may not be necessary to set out the entire facts for the disposal of the appeal in detail except to state those facts, which are necessary to appreciate the short issue raised in the appeal. This is because the learned counsel for the appellant (plaintiff) has made a statement at the Bar, which we are inclined to accept. Learned counsel for the respondent(defendant) has no objection to the statement made by learned counsel for the appellant and indeed rightly.

4. The appellant (plaintiff) has filed a civil suit being civil suit No.248 of 1983 (re-numbered as C.S. No.40/2013) in the Court of Civil Judge, Sawai Madhopur against the respondent (defendant). The suit relates to a plot of land situated at Mantown in village Alampur in Sawai Madhopur (hereinafter referred to as the “suit land”). The suit is filed for permanent injunction restraining the respondent(defendant)-Nagar Palika, Sawai Madhopur from interfering in the appellant’s possession over the suit land and also for an injunction restraining the respondent from creating any third party rights in the suit land to the detriment of the appellant’s interest in the suit land.

5. The respondent(defendant) is contesting the suit and has filed their written statement. The case is pending for recording of the evidence of the parties.

6. The appellant is an illiterate old lady in her early eighties. She had executed a General Power of Attorney(GPA) in favour of one Mr. Gajanand Goyal and wanted to examine the Power of Attorney Holder in support of her case. The respondent before the Trial Court opposed this prayer which was upheld by the Trial Court.

7. The appellant felt aggrieved of the Trial Court’s order and filed writ petition under Article 227 of the Constitution of India in the High Court Bench at Jaipur. By impugned judgment, the High Court dismissed the appellant’s writ petition and affirmed the Trial Court’s order. It is against this judgment, the plaintiff felt aggrieved and filed this appeal by way of special leave in this Court.

8. Heard Mr. Sushil Kumar Jain, learned senior counsel for the appellant and Mr. Shiv Mangal, learned counsel for the respondent.

9. Mr. Sushil Kumar Jain, learned senior counsel for the appellant (plaintiff) stated that the appellant, instead of examining her Power of Attorney Holder, would personally appear to give her evidence in support of her case.

10. In view of this statement now having been made by the learned counsel for the appellant (plaintiff), it is not necessary to examine the legality and correctness of the impugned judgment on its merits.

11. We, accordingly, set aside the impugned judgment and dispose of this appeal with the following directions.

12. The appellant (plaintiff) is allowed to appear and get herself examined in support of her case set up in the plaint and lead her evidence. The appellant, if for any reason, is unable to appear in the Court due to her old age, she is permitted to get herself examined on commission at her residence at her expenses. The Court will, accordingly, appoint any lady lawyer as Local Commissioner for recording the evidence of the appellant, if the appellant makes such request.

13. The appellant is also allowed to examine other witnesses in addition to her own evidence as she may decide to examine. All other witnesses of the appellant would be examined in Court. After the appellant’s case is closed, the respondent would lead their evidence.

14. Since the case is quite old, the same should be disposed of in accordance with law within a period of six months from the date of appearance of the parties. Parties are directed to appear before the concerned Trial Court on 04.12.2017.

15. With these directions, the appeal stands disposed of.

Jaykrishna Industries Ltd. through its Director Vs. State of Maharashtra and Others [SC 2017 NOV]

KEYWORDS: If the very substratum of the advertisement has changed, a fresh tender is mandatory.

Capture

The Respondent has only itself to blame for its woes, based on a conduct that cannot be countenanced in law. It is therefore not entitled to any interest on the deposit made by it which shall be refunded by MHADA within four weeks. The Appellant is found to have been wronged, but must bear part of the blame for laches on its part also.

ACT: The DCR Regulation 33(5) under the Development Control Regulations for Greater Bombay, 1991

DATE: November 13, 2017

BENCH : (Ranjan Gogoi)  (Navin Sinha)


SUPREME COURT OF INDIA

Jaykrishna Industries Ltd. through its Director Vs. State of Maharashtra and Others

NAVIN SINHA, J.

1. Leave granted in both Special Leave Petitions.

2. The present batch of appeals, between the same parties, arise from a controversy relating to auction settlement by the Mumbai Housing and Area Development Board (hereinafter referred to as “the MHADA”), of a plot of land measuring 10,000 sq. mtrs, located at Powai, in the town of Mumbai. The auction notice published on 17.11.2004, remains inconclusive, mired in litigation. The subsequent developments being relevant are also required to be noticed. The contesting parties, M/s.Popcorn Properties Private Limited and M/s. Jaykrishna Industries Ltd., shall hereinafter be referred to as the Appellant and Respondent for convenience.

3. Sri Shekhar Naphade, learned Senior Counsel for the Appellant submitted that it being the highest bidder at Rs.22,22,22,300/-, provisional acceptance of the bid was communicated to it on 17.12.2004. As required, 25% of the tender amount was deposited on 03.01.2005, awaiting communication for deposit of the balance 75% amount. On 03.05.2005, the Appellant objected to MHADA illegally negotiating settlement of the subject lands with the Respondent. Writ Petition No. 2112 of 2005 was instituted assailing the action of the official Respondents in provisionally accepting the bid of the Respondent for Rs.22,23,22,300/-. The order dated 17.12.2004 was subsequently wrongly cancelled on 07.05.2005, and which was also assailed by the Appellant in Writ Petition No. 867 of 2010.

4. The Respondent had earlier preferred Writ Petition No. 3466 of 2004 and obtained an order on 23.12.2004 for submission of a higher bid. The Appellant was not a party to the same. The High Court was not apprised that the Appellant’s bid already stood provisionally accepted. Upon being apprised of the correct facts, the order dated 23.12.2004 was recalled which automatically results in revival of the order of acceptance of the appellant’s provisional bid. The High Court wrongly declined to interfere with the order dated 07.05.2005 ordering a fresh tender process for settlement.

5. Shri Naphade, in the aforesaid facts further submitted that the Appellant also had a right in equity for settlement in its favour, especially in view of the interim order of this Court dated 04.09.2014 permitting it to make a fresh proposal to the MHADA, and which has been found acceptable by it. MHADA had acted inequitably, on political influences, to cancel its bid at the behest of the Respondent, who was not even a bidder in response to the tender notice. The Appellant has had to suffer for no fault of it, despite being the highest bidder. An alternative submission was made that if fresh tenders were to be invited, the right of the first refusal must be given to it for matching the highest offer that may be made. The second alternative submission was that 25 percent of the plot be settled with it. The present case, on its peculiar facts, was a fit case where the normal rule of settlement by tender could be deviated from and settlement could be made by private negotiation.

6. Mr. Sanjay Hegde, learned Senior Counsel for the Respondent submitted that even prior to the advertisement dated 17.11.2004, the Respondent had a pre-existing right to settlement as it was already in negotiation with MHADA, culminating in orders dated 05.07.1999 and 05.10.1999 in its favour. This was recognised in Writ Petition No. 3466 of 2004 permitting it to offer a higher bid. On 15.02.2005, the Respondent offered to increase its bid by Rs.10,00,000/- above that of the Appellant and payment was made on 02.05.2005. The challenge by the Appellant to the cancellation dated 07.05.2005 was highly belated. The Appellant had no locus in the matter after the cancellation order. The cancellation order having been declined interference, the question of any private negotiation does not arise. A like claim in equity was also raised for an opportunity to pay the market price and match the price that may be offered by the Appellant.

7. Learned Counsel for the State of Maharashtra submitted that the order dated 05.07.1999 on which the Respondent’s claim is founded has itself been annulled on 22.02.2000, and which has not been assailed. Sri M.L. Verma, learned Senior Counsel appearing on behalf of MHADA, submitted that the advertisement dated 17.11.2004 was for construction of a  hotel according to the then permissible commercial usage of the plot. The subsequent change in permissible usage to residential purpose for construction of a housing complex renders the entire controversy infructuous. A new advertisement for auction at the best price available will have to be made. Considerable time has also passed since the advertisement. The DCR Regulation 33(5) under the Development Control Regulations for Greater Bombay, 1991 (hereinafter referred to as “the Regulations”) with regard to increase in FSI has not yet been finalized and published. It was specifically denied that any decision had been taken to make settlement in favour of the Appellant.

8. We have considered the submissions on behalf of the parties, perused the records, including the impugned orders and the communications exchanged between the parties.

9. The claim of the Respondent for settlement of a government property by way of a private largesse, without open advertisement, is completely unfounded in the law. Its letter dated 30.06.1999 requesting for a sympathetic consideration for settlement with it, as otherwise the property was likely to be occupied by encroachers, is but a travesty of the law. Apparently, the negotiations were done by MHADA under political influence as evident from the letter of the Respondent dated 29.11.2004 read with the letter dated 30.04.2005 of one Mr. Mohan Rawle, Member of Parliament. The Respondent had not submitted any bid in response to the advertisement.

The order of the High Court dated 23.12.2004 was passed in absence of the Court being apprised of the provisional acceptance of the Appellant’s bid. The plea that the Respondent was never made aware of the order of cancellation dated 22.02.2000 merits no consideration as it was also revealed in the counter affidavit of the State of Maharashtra dated 11.07.2005 in Writ Petition No. 2112 of 2005. The cancellation order was addressed to MHADA and copy marked to the Respondent.

There shall be a presumption in law that a government communication was properly made and reached the addressee, under Section 114 (e) of the Indian Evidence Act. It is not the case of the Respondent that the order never came to be issued and remained in the file. The Respondent despite awareness never challenged the cancellation and 7 which sets at naught its entire claim. Any offer made to the Respondent in teeth of, and after the cancellation was therefore redundant.

10. The bid of the Appellant was provisionally accepted. No final allotment was made in its favour under the advertisement dated 17.11.2004. MHADA was inhibited from proceeding further in view of the Court order dated 23.12.2004 in favour of the Respondent. MHADA in its affidavit dated 24.06.2005, in Writ Petition No. 2112 of 2005 preferred by the Appellant, had disclosed the cancellation of the provisional acceptance by order dated 07.05.2005. There shall likewise be a presumption with regard to the issuance and delivery of the same to the Appellant and it is not its case that no such order was ever made or issued. The belated challenge to the cancellation in Writ Petition No. 867 of 2010 was therefore rightly rejected by the High Court on account of the intervening developments with regard to the change in permissible usage of the land from commercial to residential.

11. The change in permissible land usage by Resolution No.6684 dated 20.10.2014 is a fundamental issue which goes to the root of the matter. If the very substratum of the advertisement has changed, a fresh tender is mandatory. The passage of thirteen long years since the advertisement is also an important consideration. The Notification dated 03.07.2017 issued under DCR Regulation 33(5) inter alia altering the FSI is at the final stage awaiting publication. The bid price today for that reason will also escalate considerably.

The State Government and MHADA have denied any fresh negotiated settlement with the Appellant. The interim order of this Court dated 04.09.2014 was not a carte blanche for a mandatory settlement with the Appellant. The High Court has noticed that the value of the property today would be approximately 75 crores. In the land starved city of Mumbai, the settlement of any government land, for a housing project, has to be by public auction only, so as to fetch the best price in the larger public interest.

12. The Respondent has only itself to blame for its woes, based on a conduct that cannot be countenanced in law. It is therefore not entitled to any interest on the deposit made by it which shall be refunded by MHADA within four weeks. The Appellant is found to have been wronged, but must bear part of the blame for laches on its part also. It is therefore held entitled to interest @ 8% on the deposit made by it including the earnest money, only till 24.06.2005, to be paid within six weeks.

13. In the entirety of the matter, all the appeals lack merit and are dismissed.


WITH

[Civil Appeal No.496 of 2007]

Popcorn Properties Pvt. Ltd. through its Director and another Vs. State of Maharashtra and Others

[Civil Appeal No. 498 of 2007]

Popcorn Properties Pvt. Ltd. and another Vs. State of Maharashtra and Others

[Civil Appeal No. 18489 of 2017 arising out of SLP (C) No.33322 of 2011]

Aykrishna Industries Ltd. Vs. State of Maharashtra and Others

[Civil Appeal No.18492 of 2017 arising out of SLP (C) No.30293 of 2017]


The Bankers Books Evidence Act, 1891

Law Library

Note
(18 of 1891)

[1st October, 1891]

An Act to amend the Law of Evidence with respect to Bankers Books.
Whereas it is expedient to amend the Law of Evidence with respect to Bankers Books; It is hereby enacted as follows:

1. Title and extent .(1) This Act may be called The Bankers Books Evidence Act, 1891.
[(2)] It extends to the [whole of India] except the State of Jammu and Kashmir.]

2. Definitions .In this Act, unless there is something repugnant in the subject or context,
[(1) company means any company as defined in section 3 of the Companies Act, 1956 (1 of 1956) and includes a foreign company within the meaning of section 591 of that Act;

(1-A) corporation means any body corporate established by any law for the time being in force in India and includes the Reserve Bank of India, the State Bank of India and any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959;]
(2) bank and banker mean
[(a) any company or corporation carrying on the business of banking],
(b) any partnership or individual to whose books the provisions of this Act shall have been extended as hereinafter provided,
[(c) any post office savings bank or money order office;]

(3) bankers books include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of a bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both;]

(4) legal proceeding means,
(i) any proceeding or inquiry in whichevidence is or may be given;
(ii) an arbitration; and
(iii) any investigation or inquiry under the Code of Criminal Procedure, 1973 (2 of 1974), or under any other law for the time being in force for the collection of evidence, conducted by a police officer or by any other person (not being a magistrate) authorised in this behalf by a magistrate or by any law for the time being in force;]
(5) the Court means the person or persons before whom a legal proceeding is held or taken;
(6) Judge means a Judge of a High Court;
(7) trial means any hearing before the Court at which evidence is taken; and
[(8) certified copy means when the books of a bank,

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the banks business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2-A;]

(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2-A.]

2-A. Conditions in the printout .

A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely:
(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and
(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of
(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) the safeguards adopted to prevent and detect unauthorised change of data;
(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such storage devices;
(H) the safeguards to prevent and detect any tampering with the system; and
(I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data. ]

3. Power to extend provisions of Act .

The [State] Government may, from time to time, [by notification ]in the Official Gazette, extend the provisions of this Act to the books of any partnership or individual carrying on business of bankers within the territories under its administration, and keeping a set of not less than three ordinary account-books, namely, a cash-book, a day-book or journal, and a ledger, and may in like manner rescind any such notification.

4. Mode of proof of entries in bankers books .

Subject to the provisions of this Act, a certified copy of any entry in a bankers book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.

5. Case in which officer of bank not compellable to produce books .

No officer of a bank shall in any legal proceeding to which the bank is not a party be compellable to produce any bankers book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the Court or a Judge made for special cause.

6. Inspection of books by order of Court or Judge .

(1)On the application of any party to a legal proceeding, the Court or a Judge may order that such party be at liberty to inspect and take copies of any entries in a bankers book for any of the purposes of such proceeding, or may order the bank to prepare and produce, within a time to be specified in the order, certified copies of all such entries, accompanied by a further certificate that no other entries are to be found in the books of the bank relevant to the matters in issue in such proceeding, and such further certificate shall be dated and subscribed in manner hereinbefore directed in reference to certified copies.
(2) An order under this or the preceding section may be made either with or without summoning the bank and shall be served on the bank three clear days (exclusive of bank holidays) before the same is to be obeyed, unless the Court or Judge shall otherwise direct.
(3) The bank may at any time before the time limited for obedience to any such order as aforesaid either offer to produce their books at the trial or give notice of their intention to show cause against such order, and thereupon the same shall not be enforced without further order.

7. Costs .

(1) The costs of any application to the Court or a Judge under or for the purposes of this Act and the costs of anything done or to be done under an order of the Court or a Judge made under or for the purposes of this Act shall be in the discretion of the Court or Judge, who may further order such costs or any part thereof to be paid to any party by the bank if they have been incurred in consequence of any fault or improper delay on the part of the bank.
(2) Any order made under this section for the payment of costs to or by a bank may be enforced as if the bank were a party to the proceeding.
(3) Any order under this section awarding costs may, on application to any Court of Civil Judicature designated in the order, be executed by such Court as if the order were a decree for money passed by itself:
Provided that nothing in this sub-section shall be construed to derogate from any power which the Court or Judge making the order may possess for the enforcement of its or his directions with respect to the payment of costs.

8. Order of Court to be construed to be order made by specified officer .

In the application of sections 5, 6 and 7 to any investigation or inquiry referred to in sub-clause (iii) of clause (4) of section 2, the order of a Court or a Judge referred to in the said sections shall be construed as referring to an order made by an officer of a rank not lower than the rank of a Superintendent of Police as may be specified in this behalf by the appropriate Government.
Explanation. In this section, appropriate Government means the Government by which the police officer or any other person conducting the investigation or inquiry is employed.]

Investigation Into Cases Under The Prevention of Corruption Act 1988

Note

The Prevention Of Corruption Act, 1988

 S 17. Persons authorised to investigate.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,

(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;

(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:

Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or makes arrest therefor without a warrant:

Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

18. Power to inspect bankers books .

If from information received or otherwise, a police officer has reason to suspect the commission of an offence which he is empowered to investigate under section 17 and considers that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers books, then notwithstanding anything contained in any law for the time being in force, he may inspect any bankers books insofar as they relate to the accounts of the persons suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this section:

Provided that no power under this section in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.

Explanation. In this section, the expressions banks and bankers books shall have the meanings respectively assigned to them in the Bankers Books Evidence Act, 1891.

The Prevention Of Corruption Act, 1988

Note

The Prevention Of Corruption Act, 1988
(49 of 1988)

An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith .
Be it enacted by Parliament in the Thirty-ninth Year of the Republic of India as follows:-

CHAPTER I

Preliminary

1. Short title and extent .(1) This Act may be called The Prevention of Corruption Act , 1988.
(2) It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India.

2. Definitions .In this Act, unless the context otherwise requires,
(a) election means any election, by whatever means held under any law for the purpose of selecting Members of Parliament or of any Legislature, local authority or other public authority;
(b) public duty means a duty in the discharge of which the State, the public or the community at large has an interest;
Explanation. In this clause State includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(c) public servant means,
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a Court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such Court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a Court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1 .Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2 .Wherever the words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

CHAPTER II

Appointment Of Special Judges

3. Power to appoint special Judges .(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).
4. Cases triable by special Judges .(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only.
(2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
5. Procedure and powers of special Judge .(1) 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 Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).
6. Power to try summarily .(1) Where a special Judge tries any offence specified in sub-section (1) of section 3, alleged to have been committed by a public servant in relation to the contravention of any special order referred to in sub-section (1) of section 12-A of the Essential Commodities Act, 1955 (10 of 1955) or of an order referred to in clause (a) of sub-section (2) of that section, then, notwithstanding anything contained in sub-section (1) of section 5 of this Act or section 260 of the Code of Criminal Procedure, 1973 (2 of 1974), the special Judge shall try the offence in a summary way, and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the special Judge to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the special Judge shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or re-hear the case in accordance with the procedure prescribed by the said Code for the trial of warrant cases by Magistrates.
(2) Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 (2 of 1974), there shall be no appeal by a convicted person in any case tried summarily under this section in which the special Judge passes a sentence of imprisonment not exceeding one month, and of fine not exceeding two thousand rupees whether or not any order under section 452 of the said Code is made in addition to such sentence, but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by a special Judge.

CHAPTER III
Offences And Penalties

7. Public servant taking gratification other than legal remuneration in respect of an official act .Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanation. (a) Expecting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) Gratification. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) Legal remuneration. The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and, thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
8. Taking gratification, in order, by corrupt or illegal means, to influence public servant .Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
9. Taking gratification, for exercise of personal influence with public servant .Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
10. Punishment for abetment by public servant of offences defined in section 8 or 9 .Whoever, being a public servant, in respect of whom either of the offences defined in section 8 or section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant .Whoever, being a public servant, accepts or obtains or agrees to accept, or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
12. Punishment for abetment of offences defined in section 7 or 11 .Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
13. Criminal misconduct by a public servant .(1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) 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 income.
Explanation. For the purposes of this section, known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
14. Habitual committing of offence under sections 8, 9 and 12 .Whoever habitually commits,
(a) an offence punishable under section 8 or section 9; or
(b) an offence punishable under section 12, shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine.
15. Punishment for attempt .Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine.
16. Matters to be taken into consideration for fixing fine .Where a sentence of fine is imposed under sub-section (2) of section 13 or section 14, the Court in fixing the amount of the fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub-section (1) of section 13, the pecuniary resources or property referred to in that clause for which the accused person is unable to account satisfactorily.

CHAPTER IV
Investigation Into Cases Under The Act
CHAPTER V
Sanction For Prosecution And Other Miscellaneous Provisions

19. Previous sanction necessary for prosecution .(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) 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 sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation. For the purposes of this section,
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
20. Presumption where public servant accepts gratification other than legal remuneration .(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
21. Accused person to be a competent witness .Any person charged with an offence punishable under this Act, shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that
(a) he shall not be called as a witness except at his own request;
(b) his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;
(c) he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless
(i) the proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or
(ii) he has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution, or
(iii) he has given evidence against any other person charged with the same offence.
22. The Code of Criminal Procedure, 1973 to apply subject to certain modifications .The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall in their application to any proceeding in relation to an offence punishable under this Act have effect as if,
(a) in sub-section (1) of section 243, for the words The accused shall then be called upon, the words The accused shall then be required to give in writing at once or within such time as the Court may allow, a list of persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon had been substituted;
(b) in sub-section (2) of section 309, after the third proviso, the following proviso had been inserted, namely:
Provided also that the proceeding shall not be adjourned or postponed merely on the ground that an application under section 397 had been made by the party to the proceeding.;
(c) after sub-section (2) of section 317, the following sub-section had been inserted, namely:
(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Judge may, if he thinks fit and for reasons to be recorded by him, proceed with enquiry or trial in the absence of the accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witness for cross-examination.;
(d) in sub-section (1) of section 397, before the Explanation, the following proviso had been inserted, namely:
Provided that where the powers under this section are exercised by a Court on an application made by a party to such proceedings, the Court shall not ordinarily call for the record of the proceedings,
(a) without giving the other party an opportunity of showing cause why the record should not be called for; or
(b) if it is satisfied that an examination of the record of the proceedings may be made from the certified copies..
23. Particulars in a charge in relation to an offence under section 13(1)(c) .Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), when an accused is charged with an offence under clause (c) of sub-section (1) of section 13, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 of the said Code:
Provided that the time included between the first and last of such dates shall not exceed one year.
24. Statement by bribe giver not to subject him to prosecution .Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence under sections 7 to 11 or under section 13 or section 15, that he offered or agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant, shall not subject such person to a prosecution under section 12.
25. Military, Naval and Air Force or other law not to be affected .(1) Nothing in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any Court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), the Border Security Force Act, 1968 (47 of 1968), the Coast Guard Act, 1978 (30 of 1978) and the National Security Guard Act, 1986 (47 of 1986).
(2) For the removal of doubts, it is hereby declared that for the purposes of any such law as is referred to in sub-section (1), the Court of a special Judge shall be deemed to be a Court of ordinary criminal justice.
26. Special Judges appointed under Act 46 of 1952 to be special Judges appointed under this Act .Every special Judge appointed under the Criminal Law Amendment Act, 1952 for any area or areas and is holding office on the commencement of this Act shall be deemed to be a special Judge appointed under section 3 of this Act for that area or areas and, accordingly, on and from such commencement, every such Judge shall continue to deal with all the proceedings pending before him on such commencement in accordance with the provisions of this Act.
STATE AMENDMENTS 6
27. Appeal and revision .Subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court as if the Court of the special Judge were a Court of Session trying cases within the local limits of the High Court.
28. Act to be in addition to any other law .The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him.
29. Amendment of the Ordinance 38 of 1944 .In the Criminal Law Amendment Ordinance, 1944,
(a) in sub-section (1) of section 3, sub-section (1) of section 9, clause (a) of section 10, sub-section (1) of section 11 and sub-section (1) of section 13, for the words State Government, wherever they occur, the words State Government or, as the case may be, the Central Government shall be substituted.
(b) in section 10, clause (a), for the words, three months, the words one year shall be substituted;
(c) in the Schedule,
(i) paragraph 1 shall be omitted;
(ii) in paragraphs 2 and 4,
(a) after the words a local authority, the words and figures or a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or a society aided by such corporation, authority, body or Government company shall be inserted;
(b) after the words or authority, the words or corporation or body or Government company or society shall be inserted;
(iii) for paragraph 4-A, the following paragraph shall be substituted, namely:
4-A. An offence punishable under the Prevention of Corruption Act, 1988.;
(iv) in paragraph 5, for the words and figures items 2, 3 and 4, the words, figures and letter items 2, 3, 4 and 4-A shall be substituted.
30. Repeal and saving .(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.
31. Omission of certain sections of Act 45 of 1860 .Sections 161 to 165-A (both inclusive) of the Indian Penal Code (45 of 1860) shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act.

State of Uttarakhand Vs. Jairnail Singh [SC 2017 NOV]

KEYWORD :

Capture

  • High Court while reversing the decision of the Session Court acquits the accused and assigns the reasons by appreciating the entire evidence  in support of the acquittal, then this Court would not be inclined to interfere in the order of acquittal. In our view, it is necessary for the High Court while hearing the appeal arising out of the order of conviction to appreciate the entire evidence and then come to its conclusion to affirm or reverse the order.
  • it is necessary for the High Court to assign cogent reasons as to why it does not consider it proper to agree with the reasoning of the Sessions Judge by pointing out material contradiction in evidence and infirmities in the prosecution case.

Act: Section 307 of the Indian Penal Code -Section 25(1-A) of the Arms Act

Date: November 13, 2017

Bench:   [R.K. AGRAWAL]  [ABHAY MANOHAR SAPRE]


SUPREME COURT OF INDIA

State of Uttarakhand Vs. Jairnail Singh

[Criminal Appeal No…………… of 2017 arising out of S.L.P. (CRL.) No. 1651 of 2015]

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the State against the final judgment and order dated 22.05.2014 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No.33 of 2005 whereby the High Court allowed the appeal filed by the respondent(accused) herein and set aside the order of conviction and sentence dated 01.03.2005 passed by the Trial Court in Session Trial Nos.319 & 320 of 2000 by which the respondent(accused) was convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Section 25(1-A) of the Arms Act, 1959 and sentenced him to undergo rigorous imprisonment for ten years and a fine of Rs.5000/- under Section 307 of IPC, in default of payment of fine, to further undergo imprisonment for three months and to undergo rigorous imprisonment for five years and a fine of Rs.1000/- under Section 25(1-A) of the Arms Act, in default of payment of fine, to further undergo imprisonment for one month. Both the sentences were directed to run concurrently.

3. The prosecution case is that on 12.12.1999 at 17.45 hrs., the First Information Report (FIR) was lodged by Asgar Ali, son of Allah Diya, resident of Mohalla Naudhauna, Kasba and Police Station Sherkot, District Bijnore in Police Station Nanakmatta, Dist. Udham Singh Nagar, Uttarakhand. As per the contents of the FIR lodged by Asgar Ali-the Complainant, on 08.12.1999, he along with his brother Akbar Ali and 10-12 other persons were doing the trading of sale purchase of paddy of Village Devipura.

On 12.12.1999, at around 11.00 hrs., when Akbar Ali (injured victim) was weighing paddy of Jairnail Singh(accused) in his village at Devipura, at that time, Jairnail Singh came and made an allegation on  Akbar Ali that more paddy has been weighed while it had been shown less. Akbar Ali denied the allegation. Therefore, Jairnail Singh started abusing Akbar Ali and when Akbar Ali objected, the quarrel erupted and Jairnail Singh took out a bore country made pistol from his right pocket of his pant and fired on the temple of Akbar Ali, due to which Akbar Ali fell down at the spot.

Asgar Ali(complainant) and other companions of Akbar Ali tried to grab Jairnail Singh but he succeeded to escape from the spot with the pistol in south direction. The Complainant and his companions took the injured Akbar Ali to the Government Hospital, Nanamatta on his tractor trolley where no doctor was available. Therefore, they went to Government Hospital, Khatima where doctor referred the injured to the Government Hospital, Pilibhit where the injured was examined.

4. During the investigation, the Investigating Officer on 13.12.1999 at about 12.30 p.m. arrested Jairnail Singh from Nanak Sagar Dam and recovered the pistol, which was without license. After completion of the investigation, the Investigating Officer filed the charge-sheet under Section 307 IPC and Section 25 of 3 the Arms Act against Jairnail Singh (accused).

5. The Judicial Magistrate, Khatima, Dist. Udham Singh Nagar, committed the case for trial to the Session Court. After committal of the case to the Session Court, Udham Singh Nagar, Rudrapur, the Sessions Judge, framed charges against the accused-Jairnail Singh under Section 307 IPC and Section 25 of the Arms Act in Session Trial Case No.320 of 2000 for the offence punishable under Section 307 IPC and Session Trial Case No.319 of 2000 for the offence punishable under Section 25 of the Arms Act. The accused denied the charges.

6. The Trial Court conducted the trial in both the cases together. By judgment dated 01.03.2005, the Trial Court convicted the accused for the offences punishable under Section 307 of IPC and Section 25 of the Arms Act and sentenced him to undergo rigorous imprisonment for ten years for the charge under Section 307 IPC and a fine of Rs.5000/-, in default of payment of fine, to further undergo imprisonment for three months and also to undergo rigorous imprisonment for five years under Section 25(1-A) of the Arms Act and a fine of Rs.1000/-, 4 in default of payment of fine, to further undergo imprisonment for one month. Both the sentences were directed to run concurrently.

7. Aggrieved by the judgment of the Trial Court, the respondent(accused) filed an appeal being Criminal Appeal No.33 of 2005 before the High Court. The High Court, by impugned judgment, allowed the appeal and set aside the order of conviction and sentence of the respondent-accused passed by the Trial Court in Session Trial Nos.319 and 320 of 2000.

8. Felt aggrieved, the State has filed this appeal by way of special leave before this Court.

9. Heard Mr. Rajiv Nanda, learned counsel for the appellant (State) and Mr. Adarsh Upadhyay, learned counsel for the respondent (accused).

10. Learned counsel for the appellant (State) while assailing the legality and correctness of the impugned judgment contended that the High Court was not right in reversing the well reasoned judgment of the Session Court, which rightly held the respondent-accused guilty of commission of offences punishable under Section 307 IPC and Section 25(1-A) of the Arms Act and accordingly 5 had rightly convicted him for the said offences.

11. It was his submission that the three eye witnesses (PWs-1, 2 and 3), whose testimony was believed by the Sessions Judge for recording conviction of the respondent, should not have been reversed by the High Court in the appeal filed by the respondent-accused. According to learned counsel, such findings should have been affirmed by the High Court as the same was based on proper appreciation of the evidence of the three witnesses.

12. Learned counsel further submitted that the discrepancies, if any, which were made basis by the High Court for acquitting the respondent (accused) were technical in nature and did not materially affect the prosecution case. Such discrepancies, according to learned counsel, should have been ignored being wholly insignificant in the light of the law laid down in Dhanaj Singh @ Shera & Ors. vs. State of Punjab, (2004) 3 SCC 654.

13. Learned counsel then took us through the evidence of the prosecution witnesses and argued that their ocular evidence deserve acceptance for convicting the  respondent under Section 307 IPC and Section 25(1-A) of the Arms Act.

14. In reply, learned counsel for the respondent (accused) supported the impugned judgment and contended that no case for any interference in the impugned judgment is made out as the same is based on proper appreciation of evidence.

15. It was also his submission that the infirmities noticed by the High Court in prosecution case for reversing the judgment of the Session Court cannot be faulted with and being material in nature deserve to be upheld by this Court as was rightly done by the High Court.

16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.

17. In other words, in our view, the reasoning and the conclusion of the High Court in acquitting the respondent of the charges under Section 307 IPC and Section 25(1-A) appears to be just and proper as set out below and to which we concur and hence it does not call for any interference by this Court.


18. First, the parties involved in the case namely, the victim, his brother, who was one of the eye-witnesses with other two eye-witnesses and the accused were known to each other then why the Complainant-brother of victim in his application (Ex-P-A) made immediately after the incident to the Chief Medical Superintendent, Pilibhit did not mention the name of the accused and instead mentioned therein “some sardars”.

19. Second, according to the prosecution, the weapon used in commission of offence was recovered from the pocket of the accused the next day, it looked improbable as to why would the accused keep the pistol all along in his pocket after the incident for such a long time and roam all over.

20. Third, the weapon (pistol) alleged to have been used in the commission of the offence was not sent for forensic examination with a view to find out as to whether it was capable of being used to open fire and, if so, whether the bullet/palate used could be fired from such gun. Similarly, other seized articles such as blood-stained shirt and soil were also not sent for forensic examination.

21. Fourth, weapon (Pistol) was not produced before the  concerned Magistrate, as was admitted by the Investigating Officer.

22. Lastly, if, according to the prosecution case, the shot was hit from a very short distance as the accused and the victim were standing very near to each other, then as per the medical evidence of the Doctor (PW-6) a particular type of mark where the bullet was hit should have been there but no such mark was noticed on the body. No explanation was given for this. This also raised some doubt in the prosecution case.


23. In our considered opinion, the aforesaid infirmities were, therefore, rightly noticed and relied on by the High Court for reversing the judgment of the Session Court after appreciating the evidence, which the High Court was entitled to do in its appellate jurisdiction. We find no good ground to differ with the reasoning and the conclusion arrived at by the High Court.

24. In other words, it cannot be said that the aforementioned infirmities were either irrelevant or in any way insignificant or technical in nature as compared only to the ocular version of the witnesses. The prosecution, in our view, should have taken care of some of the  infirmities noticed by the High Court and appropriate steps should have been taken before filing of the charge-sheet to overcome them. It was, however, not done. The benefit of such infirmities was, accordingly, rightly given to the respondent by the High Court.

25. In the light of the aforementioned infirmities noticed in the prosecution case which, in our opinion, were material, the decision cited by the learned counsel for the appellant (State) cannot be applied to the facts of the case at hand. It is distinguishable.

26. Since the State has challenged the order of acquittal in this appeal, unless we are able to notice any kind of illegality in the impugned judgment, we cannot interfere in such judgment. In other words, it is only when we find that the impugned judgment is based on no evidence or/and it contains no reasoning or when it is noticed that the reasoning given are wholly perverse, this Court may consider it proper in appropriate case to interfere and reverse the decision of the High Court.

27. But when the High Court while reversing the decision of the Session Court acquits the accused and assigns the reasons by appreciating the entire evidence  in support of the acquittal, then this Court would not be inclined to interfere in the order of acquittal. In our view, it is necessary for the High Court while hearing the appeal arising out of the order of conviction to appreciate the entire evidence and then come to its conclusion to affirm or reverse the order. In a case of later, which results in reversal, with which we are here concerned, it is necessary for the High Court to assign cogent reasons as to why it does not consider it proper to agree with the reasoning of the Sessions Judge by pointing out material contradiction in evidence and infirmities in the prosecution case. Case at hand is of this nature.

28. In view of foregoing discussion, we find no merit in the appeal. The appeal fails and is accordingly dismissed.

Summons, Searches And Seizures under Prevention of Money Laundering Act 2002

Summons, Searches And Seizures, Etc.

Note

16. Power of survey .

(1) Notwithstanding anything contained in any other provisions of this Act, where an authority, on the basis of material in his possession, has reason to believe (the reasons for such belief to be recorded in writing) that an offence under section 3 has been committed, he may enter any place
(i) within the limits of the area assigned to him; or
(ii) in respect of which he is authorised for the purposes of this section by such other authority, who is assigned the area within which such place is situated, t which any act constituting the commission of such offence is carried on, and may require any proprietor, employee or any other person who may at that time and place be attending in any manner to, or helping in, such act so as to,
(i) afford him the necessary facility to inspect such records as he may require and which may be available at such place;
(ii) afford him the necessary facility to check or verify the proceeds of crime or any transaction related to proceeds of crime which may be found therein; and
(iii) furnish such information as he may require as to any matter which may be useful for, or relevant to, any proceedings under this Act.
Explanation. For the purposes of this sub-section, a place, where an act which constitutes the commission of the offence is carried on, shall also include any other place, whether any activity is carried on therein or not, in which the person carrying on such activity states that any of his records or any part of his property relating to such act are or is kept.
(2) The authority referred to in sub-section (1) shall, after entering any place referred to in that sub-section immediately after completion of survey, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope in the manner as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period as may be prescribed.
(3) An authority acting under this section may
(i) place marks of identification on the records inspected by him and make or cause to be made extracts or copies therefrom,
(ii) make an inventory of any property checked or verified by him, and
(iii) record the statement of any person present in the place which may be useful for, or relevant to, any proceeding under this Act.

17. Search and seizure .

(1) Where [the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section,] on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person
(i) has committed any act which constitutes money-laundering, or
(ii) is in possession of any proceeds of crime involved in money-laundering, or
(iii) is in possession of any records relating to money-laundering, or then, subject to the rules made in this behalf, he may authorise any officer subordinate to him to
[(iv) is in possession of any property re lated to crime,];
(a) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such records or proceeds of crime are kept;
(b) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (a) where the keys thereof are not available;
(c) seize any record or property found as a result of such search;
(d) place marks of identification on such record or [property, if required or] make or cause to be made extracts or copies therefrom;
(e) make a note or an inventory of such record or property;
(f) examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act:
[Provided that no search shall be conducted unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 1 57 of the Code of Criminal Procedure, 1973, or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not be low the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose.;
[(lA) Where it is not practicable to seize such record or property, the officer authorised under sub-section (1), may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned :-
Provided that if, at any time before its confiscation under sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60, it becomes practical to seize a frozen property, the officer authorised under sub-section (I) may seize such property.
(2) The authority, who has been authorised under sub-section (1) shall, i [or upon issuance of a freezing order], forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed.
(3) Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence:
Provided that no authorisation referred to in sub-section (1) shall be required for search under this sub-section.
[(4) The authority seizing any record or property under sub-section (I) or freezing any record or property under sub-section (J A) shall, within a period of thirty days from such seizure or freezing, as the case may be, file an application, requesting for retention of such record or property seized under sub-section (1) or for continuation of the order of freezing served under sub-section (1 A), before the Adjudicating Authority.]

18. Search of persons .

(1) If an authority, authorised in this behalf by the Central Government by general or special order, has reason to believe (the reason for such belief to be recorded in writing) that any person has secreted about his person or in anything under his possession, ownership or control, any record or proceeds of crime which may be useful for or relevant to any proceedings under this Act, he may search that person and seize such record or property which may be useful for or relevant to any proceedings under this Act:
[Provided that no search of any person shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 1 57 of the Code of Criminal Procedure, 1973, or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose.
(2) The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed.
(3) Where an authority is about to search any person, he shall, if such person so requires, take such person within twenty-four hours to the nearest Gazetted Officer, superior in rank to him, or a Magistrate:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey undertaken to take such person to the nearest Gazetted Officer, superior in rank to him, or Magistrates Court.
(4) If the requisition under sub-section (3) is made, the authority shall not detain the person for more than twenty-four hours prior to taking him before the Gazetted Officer, superior in rank to him, or the Magistrate referred to in that sub-section:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of detention to the office of the Gazetted Officer, superior in rank to him, or the Magistrates Court.
(5) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge such person but otherwise shall direct that search be made.
(6) Before making the search under sub-section (1) or sub-section (5), the authority shall call upon two or more persons to attend and witness the search, and the search shall be made in the presence of such persons.
(7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list.
(8) No female shall be searched by any one except a female.
(9) The Authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or proceeds of crime found or seized in the course of the search:

(10) The authority, seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such record or property, before the Adjudicating Authority.

19. Power to arrest .

(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (that reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrates Court.

20. Retention of property .

(1) Where any property has been seized under section 17 or section 18 or frozen under sub-section (JA) of section 17 and the officer authorised by the Director in this behalf has, on the basis of material in his possession, reason to believe (the reason for such belief to be recorded by him in writing) that such property is required to be retained for the purposes of adjudication under section 8, such property may, if seized, be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such property was seized or frozen, as the case may be.
(2) The officer authorised by the Director shall, immediately after he has passed an order for retention or continuation of freezing of the property for purposes of adjudication under section 8, forward a copy of the order along with the material in his possession, referred to in sub-section (1), to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.
(3) On the expiry of the period specified in sub-section (1), the property shall be returned to the person from whom such property was seized or whose property was ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such property beyond the said period.
(4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such property beyond the period specified in sub-section (1), shall satisfy himself that the property is prima facie involved in money-laundering and the property is required for the purposes of adjudication under section 8.
(5) After passing the order of confiscation under sub-section (5) or sub-section (7) of section 8, the Court or the Adjudicating Authority, as the case may be, shall direct the release of all property other than the property involved in money-laundering to the person from whom such property was seized or the persons entitled to receive it.
(6) Where an order releasing the property has been made by the Court under sub-section (6) of section 8 or by the Adjudicating Authority under section 58B or sub-section (2A) of section 60, the Director or any officer authorised by him in this behalf may withhold the release of any such property for a period of ninety days from the date of such order, if he is of the opinion that such property is relevant for the appeal proceedings under this Act.]

21. Retention of records.

(1) Where any records have been seized, under section 17 or section 1 8 or frozen under sub-section (1 A) of section 17 and the Investigating Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be.
(2) The person, from whom records seized or frozen, shall be entitled to obtain copies of records.
(3) On the expiry of the period specified under sub-section (1), the records shall be returned to the person from whom such records were seized or whose records were ordered to be frozen unless the Adjudicating Authority permits retention or continuation of freezing of such records beyond the said period.
(4) The Adjudicating Authority, before authorising the retention or continuation of freezing of such records beyond the period specified in sub-section (I), shall satisfY himself that the records are required for the purposes of adjudication under section 8.
(5) After passing o f a n order o f confiscation under sub-section (5) or sub-section (7) of section 8, the Adjudicating Authority shall direct the release of the records to the person from whom such records were seized.
(6) Where an order releasing the records has been made by the Court under sub-section (6) of section 8 or by the Adjudicating Authority under section 58B or sub-section (2A) of section 60, the Director or any other officer authorised by him in this behalf may withhold the release of any such record for a period of ninetY days from the date of such order, if he is of the opinion that such record is relevant for the appeal proceedings under this Act.]

22. Presumption as to records or property in certain cases .

(1) Where any records or property are or is found in the possession or control of any person in the course of a survey or a search, [or where any record or property is produced by any person or has been resumed or seized from the custody or control of any person or has been frozen under this Act or under any other law for the time being in force,] it shall be presumed that
(i) such records or property belong or belongs to such person;
(ii) the contents of such records are true; and
(iii) the signature and every other part of such records which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that persons handwriting, and in the case of a record, stamped, executed or attested, that it was executed or attested by the person by whom it purports to have been so stamped, executed or attested.
(2) Where any records have been received from any place outside India, duly authenticated by such authority or person and in such manner as may be prescribed, in the course of proceedings under this Act, the Special Court, the Appellate Tribunal or the Adjudicating Authority, as the case may be, shall
(a) presume, that the signature and every other part of such record which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting; and in the case of a record executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

23. Presumption in inter-connected transactions.

Where money-laundering involves two or more inter-connected transactions and one or more such transactions is or are proved to be involved in money-laundering, then for the purposes of adjudication or confiscation [under section 8 or for the trial of the money-laundering offence, it shall unless otherwise proved to the satisfaction of the Adjudicating Authority or the Special Court], be presumed that the remaining transactions form part of such inter-connected transactions.

24. Burden of proof.

In any proceeding relating to proceeds of crime under this Act,-
(a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and
(b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering.

The Prevention Of Money-Laundering Act, 2002

The Prevention Of Money-Laundering Act, 2002
(15 of 2003)

An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto .

Whereas the Political Declaration and Global Programme of Action, annexed to the resolution S-17/2 was adopted by the General Assembly of the United Nations at its seventeenth special session on the twenty-third day of February, 1990;
And whereas the Political Declaration adopted by the Special Session of the United Nations General Assembly held on 8th to 10th June, 1998 calls upon the Member States to adopt national money-laundering legislation and programme;
And whereas it is considered necessary to implement the aforesaid resolution and the Declaration;
Be it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:


CHAPTER I

Preliminary

1. Short title, extent and commencement .

(1) This Act may be called The Prevention of Money-Laundering Act , 2002.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
Object & Reasons6

2. Definitions

(1) In this Act, unless the context otherwise requires,
(a) Adjudicating Authority means an Adjudicating Authority appointed under sub-section (1) of section 6;
(b) Appellate Tribunal means the Appellate Tribunal established under section 25;
(c) Assistant Director means an Assistant Director appointed under sub-section (1) of section 49;
(d) attachment means prohibition of transfer, conversion, disposition or movement of property by an order issued under Chapter III;
[(da) authorised person means an authorised person as defined in clause (c) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999);]
(e) banking company means a banking company or a co-operative bank to which the Banking Regulation Act, 1949 (10 of 1949) applies and includes any bank or banking institution referred to in section 51 of that Act;
(f) Bench means a Bench of the Appellate Tribunal;

(fa) “beneficial owner” means an individual who ultimately owns or controls a client of a reporting entity or the person on whose behalf a transaction is being conducted and includes a person who exercises ultimate effective control over a juridical person;]
(g) Chairperson means the Chairperson of the Appellate Tribunal;
(h) chit fund company means a company managing, conducting or supervising, as foreman, agent or in any other capacity, chits as defined in section 2 of the Chit Funds Act, 1982 (40 of 1982);
[(ha) “client” means a person who is engaged in a financial transaction or activity with a reporting entity and includes a person on whose behalf the person who engaged in the transaction or activity, is acting;];
(i) co-operative bank shall have the same meaning as assigned to it in clause (dd) of section 2 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961(47 of 1961);
[(ia) “corresponding law” means any law of any foreign country corresponding to any of the provisions of this Act or dealing with offences in that country corresponding to any of the scheduled offences;
(ib) “dealer” has the same meaning as assigned to it in clause (b) of section 2 of the Central Sales Tax Act, 1956;];
(j) Deputy Director means a Deputy Director appointed under sub-section (1) of section 49;
(k) Director or Additional Director or Joint Director means a Director or Additional Director or Joint Director, as the case may be, appointed under sub-section (1) of section 49;

(l) “financial institution” means a financial institution as defined in clause (c) of section 45-1 of the Reserve Bank of India Act, 1934 and includes a chit fund 2 of 1934. company, a housing finance institution, an authorised person, a payment system operator, a non-banking financial company and the Department of Posts in the Government of India;]
(m) ‘housing finance institution’ shall have the meaning as assigned to it in clause (d) of section 2 of the National Housing Bank Act, 1987 (53 of 1987);

(n) “intermediary” means,-
(i) a stock-broker, sub-broker, share transfer agent, banker to an issue, trustee to a trust deed, registrar to an issue, merchant banker, underwriter, portfolio manager, investment adviser or any other intermediary associated with securities market and registered under section 12 of the Securities and Exchange Board of India Act, 1992; or
(ii) an association recognised or registered under the Forward Contracts (Regulation) Act, 1952 or any member of such association;
(iii) intermediary registered by the Pension Fund Regulatory and Development Authority; or
(iv) a recognised stock exchange referred to in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956;]

(na) investigation includes all the proceedings under this Act conducted by the Director or by an authority authorised by the Central Government under this Act for the collection of evidence;]
(o) Member means a Member of the Appellate Tribunal and includes the Chairperson;
(p) money-laundering has the meaning assigned to it in section 3;
(q) non-banking financial company shall have the same meaning as assigned to it in clause (f) of section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934) [***];
(r) notification means a notification published in the Official Gazette;

(ra) offence of cross border implications, means-
(i) any conduct by a person at a place outside India which constitutes an offence at that place and which would have constituted an offence specified in Part A, Part B or Part C of the Schedule, had it been committed in India and if such person [transfers in any manner] the proceeds of such conduct or part thereof to India; or
(ii) any offence specified in Part A, Part B or Part C of the Schedule which has been committed in India and the proceeds of crime, or part thereof have been transferred to a place outside India or any attempt has been made to transfer the proceeds of crime, or part thereof from India to a place outside India.
Explanation. Nothing contained in this clause shall adversely affect any investigation, enquiry, trial or proceeding before any authority in respect of the offences specified in Part A or Part B of the Schedule to the Act before the commencement of the Prevention of Money-Laundering (Amendment) Act, 2008;

(rb) payment system means a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them.
Explanation. For the purposes of this clause, payment system includes the systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations;

(rc) payment system operator means a person who operates a payment system and such person includes his overseas principal.
Explanation. For the purposes of this clause, Overseas principal means,-
(A) in the case of a person, being an individual, such individual residing outside India, who owns or controls or manages, directly or indirectly, the activities or functions of payment system in India;
(B) in the case of a Hindu undivided family, karta of such Hindu undivided family residing outside India who owns or controls or manages, directly or indirectly, the activities or functions of payment system in India;
(C) in the case of a company, a firm, an association of persons, a body of individuals, an artificial juridical person, whether incorporated or not, such company, firm, association of persons, body of individuals, artificial juridical person incorporated or registered outside India or existing as such and which owns or controls or manages, directly or indirectly, the activities or functions of payment system in India;]
(s) person includes
(i) an individual,
(ii) a Hindu undivided family,
(iii) a company,
(iv) a firm,
(v) an association of persons or a body of individuals, whether incorporated or not,
(vi) every artificial juridical person not falling within any of the preceding sub-clauses, and
(vii) any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses;
[(sa) “person carrying on designated business or profession” means,
(i) a person carrying on activities for playing games of chance for cash or kind, and includes such activities associated with casino;
(ii) a Registrar or Sub-Registrar appointed under section 6 of the Registration Act, 1908, as may be notified by the Central Government;
(iii) real estate agent, as may be notified by the Central Government;
(iv) dealer in precious metals, precious stones and other high value goods, as may be notified by the Central Government;
(v) person engaged in safekeeping and administration of cash and liquid securities on behalf of other persons, as may be notified by the Central Government; or
(vi) person carrying on such other activities as the Central Government may, by notification, so designate, from time to time;
(sb) “precious metal” means gold, silver, platinum, palladium or rhodium or such other metal as may be notified by the Central Government;
(sc) “precious stone” means diamond, emerald, ruby, sapphire or any such other stone as may be notified by the Central Government;]
(t) prescribed means prescribed by rules made under this Act;
(u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property;
(v) property means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located;
[Explanation. – For the removal of doubts, it is hereby clarified that the term “property” includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences;

(va) “real estate agent” means a real estate agent as defined in clause (88) of section 65 of the Finance Act, 1994;]
(w) records include the records maintained in the form of books or stored in a computer or such other form as may be prescribed;

[(wa) “reporting entity” means a banking company, financial institution, intermediary or a person carrying on a designated business or profession;]
(x) Schedule means the Schedule to this Act;
(y) scheduled offence means
(i) the offences specified under Part A of the Schedule; or
[(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or
(iii) the offences specified under Part C of the Schedule;]
(z) Special Court means a Court of Session designated as Special Court under sub-section (1) of section 43;
(za) transfer includes sale, purchase, mortgage, pledge, gift, loan or any other form of transfer of right, title, possession or lien;
(zb) value means the fair market value of any property on the date of its acquisition by any person, or if such date cannot be determined, the date on which such property is possessed by such person.
(2) Any reference, in this Act or the Schedule, to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provisions of the corresponding law, if any, in force in that area.


CHAPTER II

Offence Of Money-Laundering

3. Offence of money-laundering –

Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.

4. Punishment for money-laundering –

Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine [***]:

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years, the words which may extend to ten years had been substituted.

 


CHAPTER III

Attachment, Adjudication And Confiscation

5. Attachment of property involved in money-laundering .

[(1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that-
(a) any person is in possession of any proceeds of crime; and
(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed :-
Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973, or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country :-
Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.]
(2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, alongwith the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.
(3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier.
(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.
Explanation. For the purposes of this sub-section, person interested, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
(5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

6. Adjudicating Authorities, composition, powers, etc .

(1) The Central Government shall, by notification, appoint [an Adjudicating Authority] to exercise jurisdiction, powers and authority conferred by or under this Act.
(2) An Adjudicating Authority shall consist of a Chairperson and two other Members:
Provided that one Member each shall be a person having experience in the field of law, administration, finance or accountancy.
(3) A person shall, however, not be qualified for appointment as Member of an Adjudicating Authority,
(a) in the field of law, unless he
(i) is qualified for appointment as District Judge; or
(ii) has been a member of the Indian Legal Service and has held a post in Grade I of that service;
(b) in the field of finance, accountancy or administration unless he possesses such qualifications, as may be prescribed.
(4) The Central Government shall appoint a Member to be the Chairperson of the Adjudicating Authority.
(5) Subject to the provisions of this Act,
(a) the jurisdiction of the Adjudicating Authority may be exercised by Benches thereof;
(b) a Bench may be constituted by the Chairperson of the Adjudicating Authority with one or two Members as the Chairperson of the Adjudicating Authority may deem fit;
(c) the Benches of the Adjudicating Authority shall ordinarily sit at New Delhi and such other places as the Central Government may, in consultation with the Chairperson, by notification, specify;
(d) the Central Government shall, by notification, specify the areas in relation to which each Bench of the Adjudicating Authority may exercise jurisdiction.
(6) Notwithstanding anything contained in sub-section (5), the Chairperson may transfer a Member from one Bench to another Bench.
(7) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.
(8) The Chairperson and every Member shall hold office as such for a term of five years from the date on which he enters upon his office:
Provided that no Chairperson or other Member shall hold office as such after he has attained the age of [sixty-five] years.
(9) The salary and allowances payable to and the other terms and conditions of service of the Member shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Member shall be varied to his disadvantage after appointment.
(10) If, for reasons other than temporary absence, any vacancy occurs in the office of the Chairperson or any other Member, then the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Adjudicating Authority from the stage at which the vacancy is filled.
(11) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that the Chairperson or any other Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(12) The Chairperson or any other Member shall not be removed from his office except by an order made by the Central Government after giving necessary opportunity of hearing.
(13) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson of the Adjudicating as the Chairperson of the Adjudicating Authority until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(14) When the Chairperson of the Adjudicating Authority is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson of the Adjudicating Authority until the date on which the Chairperson of the Adjudicating Authority resumes his duties.
(15) The Adjudicating Authority shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Adjudicating Authority shall have powers to regulate its own procedure.

7. Staff of Adjudicating Authorities .

(1) The Central Government shall provide each Adjudicating Authority with such officers and employees as that Government may think fit.
(2) The officers and employees of the Adjudicating Authority shall discharge their functions under the general superintendence of the Chairperson of the Adjudicating Authority.
(3) The salaries and allowances and other conditions of service of the officers and employees of the Adjudicating Authority shall be such as may be prescribed.
8. Adjudication .(1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime], it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized [or frozen] under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government:
Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person:
Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property.
(2) The Adjudicating Authority shall, after
(a) considering the reply, if any, to the notice issued under sub-section (1);
(b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and
(c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering:
Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering.
(3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall
(a) continue during the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and]
[(b) become final after an order of confiscation is passed under sub-section (5) or sub-section (7) of section 8 or section 5 8 B or sub-section (2A) of section 60 by the Adjudicating Authority];
(4) Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the [possession of the property attached under section 5 or frozen under sub-section (1A) of section 17, in such manner as may be prescribed:
Provided that if it is not practicable to take possession of a property frozen under sub-section (1A) of section 17, the order of confiscation shall have the same effect as if the property had been taken possession of.]
[(5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government.
(6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it.
(7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offence of money-laundering after having regard to the material before it.]

9. Vesting of property in Central Government .

Where an order of confiscation has been made under [sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60] in respect of any property of a person, all the rights and title in such property shall vest absolutely in the Central Government free from all encumbrances:
Provided that where the [Special Court or the Adjudicating Authority, as the case may be,], after giving an opportunity of being heard to any other person interested in the property attached under this Chapter, or seized [or frozen] under Chapter V, is of the opinion that any encumbrance on the property or lease-hold interest has been created with a view to defeat the provisions of this Chapter, it may, by order, declare such encumbrance or lease-hold interest to be void and thereupon the aforesaid property shall vest in the Central Government free from such encumbrances or lease-hold interest:
Provided further that nothing in this section shall operate to discharge any person from any liability in respect of such encumbrances which may be enforced against such person by a suit for damages.

10. Management of properties confiscated under this Chapter .

(1) The Central Government may, by order published in the Official Gazette, appoint as many of its officers (not below the rank of a Joint Secretary to the Government of India) as it thinks fit, to perform the functions of an Administrator.
(2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which an order has been made under [sub-section (5) or sub-section (6) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60] in such manner and subject to such conditions as may be prescribed.
(3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is vested in the Central Government under section 9.

11. Power regarding summons, production of documents and evidence, etc .(1) The Adjudicating Authority shall, for the purposes of this Act, have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a banking company or a financial institution or a company, and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and documents; and
(f) any other matter which may be prescribed.
(2) All the persons so summoned shall be bound to attend in person or through authorised agents, as the Adjudicating Authority may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.
(3) Every proceeding under this section shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).


CHAPTER IV

Obligations Of Banking Companies, Financial Institutions And Intermediaries

12. Reporting entity to maintain records. – (1) Every reporting entity shall. –
(a) maintain a record of all transactions, including information relating to transactions covered under clause (b), in such manner as to enable it to reconstruct individual transactions;
(b) furnish to the Director within such time as may be prescribed, information relating to such transactions, whether attempted or executed, the nature and value of which may be prescribed;
(c) verify the identity of its clients in such manner and subject to such conditions, as may be prescribed;
(d) identify the beneficial owner, if any, of such of its clients, as may be prescribed;
(e) maintain record of documents evidencing identity of its clients and beneficial owners as well as account files and business correspondence relating to its clients.
(2) Every information maintained, furnished or verified, save as otherwise provided under any law for the time being in force, shall be kept confidential.
(3) The records referred to in clause (a) of sub-section (J) shall be maintained for a period of five years from the date of transaction between a client and the reporting entity.
(4) The records referred to in clause (e) of sub-section (J) shall be maintained for a period of five years after the business relationship between a client and the reporting entity has ended or the account has been closed, whichever is later.
(5) The Central Government may, by notification, exempt any reporting entity or class of reporting entities from any obligation under this Chapter.]

12A. Access to information. – (1) The Director may call for from any reporting entity any of the records referred to in sub-section (1) of section 12 and any additional information as he considers necessary for the purposes of this Act.
(2) Every reporting entity shall furnish to the Director such information as may be required by him under sub-section (1) within such time and in such manner as he may specify.
(3) Save as otherwise provided under any law for the time being in force, every information sought by the Director under sub-section (1), shall be kept confidential].
13. Powers of Director to impose fine .(1) The Director may, either of his own motion or on an application made by any authority, officer or person, [make such inquiry or cause such inquiry to be made, as he thinks fit to be necessary, with regard to the obligations of the reporting entity, under this Chapter.]
[(1A) If at any stage of inquiry or any other proceedings before him, the Director having regard to the nature and complexity of the case, is of the opinion that it is necessary to do so, he may direct the concerned reporting entity to get its records, as may be specified, audited by an accountant from amongst a panel of accountants, maintained by the Central Government for this purpose.
(IB) The expenses of, and incidental to, any audit under sub-section (1A) shall be borne by the Central Government.];
[(2) If the Director, in the course of any inquiry, finds that a reporting entity or its designated director on the Board or any of its employees has failed to comply with the obligations under this Chapter, then, without prejudice to any other action that may be taken under any other provisions of this Act, he may-
(a) issue a warning in writing; or
(b) direct such reporting entity or its designated director on the Board or any of its employees, to comply with specific instructions; or
(c) direct such reporting entity or its designated director on the Board or any of its employees, to send reports at such interval as may be prescribed on the measures it is taking; or
(d) by an order, impose a monetary penalty on such reporting entity or its designated director on the Board or any of its employees, which shall not be less than ten thousand rupees but may extend to one lakh rupees for each failure.]
(3) The Director shall forward a copy of the order passed under sub-section (2) to every banking company, financial institution or intermediary or person who is a party to the proceedings under that sub-section.
[Explanation. – For the purpose of this section, “accountant” shall mean a chartered accountant within the meaning of the Chartered Accountants Act, 1949.]

14. No civil or criminal proceedings against reporting entity, Its directors and employees in certain cases.

Save as otherwise provided in section 13, the reporting entity, its directors and employees shall not be liable to any civil or criminal proceedings against them for furnishing information under clause (b) of sub-section (l) of section 12.”
15. Procedure and manner of furnishing information by reporting entities. – The Central Government may, in consultation with the Reserve Bank of India, prescribe the procedure and the manner of maintaining and furnishing information by a reporting entity under sub-section (1) of section 12 for the purpose of implementing the provisions of this Act.]

CHAPTER V - Summons, Searches And Seizures, Etc.

CHAPTER VI

Appellate Tribunal

25. Establishment of Appellate Tribunal .The Central Government shall, by notification, establish an Appellate Tribunal to hear appeals against the orders of the Adjudicating Authority and the authorities under this Act.
26. Appeals to Appellate Tribunal .(1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal.
(2) Any [reporting entity] aggrieved by any order of the Director made under sub-section (2) of section 13, may prefer an appeal to the Appellate Tribunal.
(3) Every appeal preferred under sub-section (1) or sub-section (2) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or Director is received and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal after giving an opportunity of being heard entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1) or sub-section (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Adjudicating Authority or the Director, as the case may be.
(6) The appeal filed before the Appellate Tribunal under sub-section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal.
27. Composition, etc., of Appellate Tribunal .(1) The Appellate Tribunal shall consist of a Chairperson and two other Members.
(2) Subject to the provisions of this Act,
(a) the jurisdiction of the Appellate Tribunal may be exercised by Benches thereof;
(b) a Bench may be constituted by the Chairperson with one or two Members as the Chairperson may deem fit;
(c) the Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson, by notification, specify;
(d) the Central Government shall, by notification, specify the areas in relation to which each Bench of the Appellate Tribunal may exercise jurisdiction.
(3) Notwithstanding anything contained in sub-section (2), the Chairperson may transfer a Member from one Bench to another Bench.
(4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.
28. Qualifications for appointment .(1) A person shall not be qualified for appointment as Chairperson unless he is or has been a Judge of the Supreme Court or of a [High Court or is qualified to be a Judge of the High Court].
(2) A person shall not be qualified for appointment as a Member unless he
[- – -]
(b) has been a Member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years; or
(c) has been a member of the Indian Revenue Service and has held the post of Commissioner of Income-tax or equivalent post in that Service for at least three years; or
(d) has been a member of the Indian Economic Service and has held the post of Joint Secretary or equivalent post in that Service for at least three years;
(e) has been a member of the Indian Customs and Central Excise Service and has held the post of a Joint Secretary or equivalent post in that Service for at least three years; or
(f) has been in the practice of accountancy as a chartered accountant under the Chartered Accountants Act, 1949 (38 of 1949) or as a registered accountant under any law for the time being in force or partly as a registered accountant and partly as a chartered accountant for at least ten years:
Provided that one of the members of the Appellate Tribunal shall be from category mentioned in clause (f); or
(g) has been a member of the Indian Audit and Accounts Service and has held the post of Joint Secretary or equivalent post in that Service for at least three years.
(3) No sitting Judge of the Supreme Court or of a High Court shall be appointed under this section except after consultation with the Chief Justice of India.
[The Chairperson or a Member holding a post as such in any other Tribunal, established under any law for the time being in force, in addition to his being the Chairperson or a Member of that Tribunal, may be appointed as the Chairperson or a Member, as the case may be, of the Appellate Tribunal under this Act.]
29. Term of office .[Omitted by the Prevention of Money-Laundering (Amendment) Act, 2005 (20 of 2005), section 4 (w.e.f. 1-7-2005).
30. Conditions of service .The salary and allowances payable to and the other [terms and conditions of service (including tenure of office)] of the Chairperson and other Members shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service (including tenure of office) of the Chairperson or any other Member shall be varied to his disadvantage after appointment.
31. Vacancies .If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or any other Member, then the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled.
32. Resignation and removal .(1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that the Chairperson or any other Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) The Chairperson or any other Member shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehaviour or incapacity, after an inquiry made by a person appointed by the President in which such Chairperson or any other Member concerned had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
[Provided that the Chief Justice of India shall be consulted before removal of the Chairperson or a Member who was appointed on the recommendation of the Chief Justice of India.]
33. Member to act as Chairperson in certain circumstances .(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(2) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

34. Staff of Appellate Tribunal .

(1) The Central Government shall provide the Appellate Tribunal with such officers and employees as that Government may think fit.
(2) The officers and employees of the Appellate Tribunal shall discharge their functions under the general superintendence of the Chairperson.
(3) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal shall be such as may be prescribed.

35. Procedure and powers of Appellate Tribunal .

(1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure.
(2) The Appellate Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(i) any other matter, which may be, prescribed by the Central Government.
(3) An order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil Court and, for this purpose, the Appellate Tribunal shall have all the powers of a civil Court.
(4) Notwithstanding anything contained in sub-section (3), the Appellate Tribunal may transmit any order made by it to a civil Court having local jurisdiction and such civil Court shall execute the order as if it were a decree made by that Court.
(5) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil Court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
36. Distribution of business amongst Benches .Where any Benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and also provide for the matters which may be dealt with by each Bench.
37. Power of Chairperson to transfer cases .On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairperson may transfer any case pending before one Bench, for disposal, to any other Bench.
38. Decision to be by majority .If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by [third Member] of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.

39. Right of appellant to take assistance of authorised representative and of Government to appoint presenting officers .

(1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of an authorised representative of his choice to present his case before the Appellate Tribunal.
Explanation. For the purposes of this sub-section, the expression authorised representative shall have the same meaning as assigned to it under sub-section (2) of section 288 of the Income-tax Act, 1961 (43 of 1961).
(2) The Central Government or the Director may authorise one or more authorised representatives or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal before the Appellate Tribunal.
40. Members, etc., to be public servants .The Chairperson, Members and other officers and employees of the Appellate Tribunal, the Adjudicating Authority, Director and the officers subordinate to him shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

41. Civil Court not to have jurisdiction .

No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Director, an Adjudicating Authority or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

42. Appeal to High Court .

Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
Explanation. For the purposes of this section, High Court means
(i) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and
(ii) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain.


CHAPTER VII

Special Courts

43. Special Courts .

(1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4 by notification designate one or more Courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification.
Explanation. In this sub-section, High Court means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation.
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

44. Offences triable by Special Courts .

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
[(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed :-
Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or]
(b) a Special Court may, [- – -] upon a complaint made by an authority authorised in this behalf under this Act take [cognizance of offence under section 3, without the accused being committed to it for trial].
[(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Crimina1 Procedure, 1 973, as it applies to a trial before a Court of Session.]
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court designated under section 43.
45. Offences to be cognisable and non-bailable .(1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by
(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
[(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed;]
(2) The limitation on granting of bail specified in [- – -] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

46. Application of the Code of Criminal Procedure, 1973 to proceedings before Special Court .

(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:
Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly.
47. Appeal and revision .The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX or Chapter XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.


CHAPTER VIII

Authorities

48. Authorities under the Act .

There shall be the following classes of authorities for the purposes of this Act, namely:
(a) Director or Additional Director or Joint Director,
(b) Deputy Director,
(c) Assistant Director, and
(d) such other class of officers as may be appointed for the purposes of this Act.

49. Appointment and powers of authorities and other officers .

(1) The Central Government may appoint such persons as it thinks fit to be authorities for the purposes of this Act.
(2) Without prejudice to the provisions of sub-section (1), the Central Government may authorise the Director or an Additional Director or a Joint Director or a Deputy Director or an Assistant Director appointed under that sub-section to appoint other authorities below the rank of an Assistant Director.
(3) Subject to such conditions and limitations as the Central Government may impose, an authority may exercise the powers and discharge the duties conferred or imposed on it under this Act.
50. Powers of authorities regarding summons, production of documents and to give evidence, etc .

(1) The Director shall, for the purposes of section 12, have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a [reporting entity], and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and documents; and
(f) any other matter which may be prescribed.
(2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.
(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.
(4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).
(5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act:
Provided that an Assistant Director or a Deputy Director shall not
(a) impound any records without recording his reasons for so doing; or
(b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Director.

51. Jurisdiction of authorities .

(1) The authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, assigned, as the case may be, to such authorities by or under this Act or the rules framed thereunder in accordance with such directions as the Central Government may issue for the exercise of powers and performance of the functions by all or any of the authorities.
(2) In issuing the directions or orders referred to in sub-section (1), the Central Government may have regard to any one or more of the following criteria, namely:
(a) territorial area;
(b) classes of persons;
(c) classes of cases; and
(d) any other criterion specified by the Central Government in this behalf.
52. Power of Central Government to issue directions, etc .The Central Government may, from time to time, issue such orders, instructions and directions to the authorities as it may deem fit for the proper administration of this Act and such authorities and all other persons employed in execution of this Act shall observe and follow such orders, instructions and directions of the Central Government:
Provided that no such orders, instructions or directions shall be issued so as to
(a) require any authority to decide a particular case in a particular manner; or
(b) interfere with the discretion of the Adjudicating Authority in exercise of his functions.

53. Empowerment of certain officers .

The Central Government may, by a special or general order, empower an officer not below the rank of Director of the Central Government or of a State Government to act as an authority under this Act:
Provided that the Central Government may empower an officer below the rank of Director if the officer of the rank of the Director or above are not available in a particular area.

54. Certain [officers and others] to assist in inquiry, etc .

The following officers are hereby empowered and required to assist the authorities in the enforcement of this Act, namely:

(a) officers of the Customs and Central Excise Departments;
(b) officers appointed under sub-section (1) of section 5 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);
(c) income-tax authorities under sub-section (1) of section 117 of the Income-tax Act, 1961 (43 of 1961);
[(d) members of the recognised stock exchange referred to in clause (j) of section 2 and the officers of the stock exchanges recognised under section 4 of the Securities Contracts (Regulation) Act, 1956;]
(e) officers of the Reserve Bank of India constituted under sub-section (1) of section 3 of the Reserve Bank of India Act, 1934 (2 of 1934);
(f) officers of Police;
(g) officers of enforcement appointed under sub-section (1) of section 36 of the Foreign Exchange Management Act, 1999 (40 of 1999);
(h) officers of the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992);
[(ha) officers of the Insurance Regulatory and Development Authority established under section 3 of the Insurance Regulatory and Development Authority Act, 1999;
(hb) officers of the Forward Markets Commission established under section 3 of the Forward Contracts (Regulation) Act, 1952;
(hc) officers and members of the recognised association recognised under section 6 of the Forward Contracts (Regulation) Act, 1952;
(hd) officers of the Pension Fund Regulatory and Development Authority;
(he) officers of the Department of Posts in the Government of India;
(hf) Registrars or Sub-Registrars appointed by the State Governments under section 6 of the Registration Act, 1 908; 16 of 1908.
(hg) registering authority empowered to register motor vehicles under Chapter IV of the Motor Vehicles Act, 1 988; 59 of 1988.
(hh) officers and members of the Institute of Chartered Accountants of India constituted under section 3 of the Chartered Accountants Act, 1949;
(hi) officers and members of the Institute of Cost and Works Accountants of India constituted under section 3 of the Cost and Works Accountants Act, 1959;
(hj) officers and members of the Institute of Company Secretaries of India constituted under section 3 of the Company Secretaries Act, 1980;];
(i) officers of any other body corporate constituted or established under a Central Act or a State Act;
(j) such other officers of the Central Government, State Government, local authorities or [reporting entities] as the Central Government may, by notification, specify, in this behalf.


CHAPTER IX

Reciprocal Arrangement For Assistance In Certain Matters And Procedure For Attachment And Confiscation Of Property

55. Definitions .In this Chapter, unless the context otherwise requires,
(a) contracting State means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;
(b) identifying includes establishment of a proof that the property was derived from, or used in the commission of an offence under section 3;
(c) tracing means determining the nature, source, disposition, movement, title or ownership of property.

56. Agreements with foreign countries .(1) The Central Government may enter into an agreement with the Government of any country outside India for
(a) enforcing the provisions of this Act;
(b) exchange of information for the prevention of any offence under this Act or under the corresponding law in force in that country or investigation of cases relating to any offence under this Act,
and may, by notification in the Official Gazette, make such provisions as may be necessary for implementing the agreement.
(2) The Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification.
57. Letter of request to a contracting State in certain cases .(1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure, 1973 (2 of 1974) if, in the course of an investigation into an offence or other proceedings under this Act, an application is made to a Special Court by the Investigating Officer or any officer superior in rank to the Investigating Officer that any evidence is required in connection with investigation into an offence or proceedings under this Act and he is of the opinion that such evidence may be available in any place in a contracting State, and the Special Court, on being satisfied that such evidence is required in connection with the investigation into an offence or proceedings under this Act, may issue a letter of request to a Court or an authority in the contracting State competent to deal with such request to
(i) examine facts and circumstances of the case,
(ii) take such steps as the Special Court may specify in such letter of request, and
(iii) forward all the evidence so taken or collected to the Special Court issuing such letter of request.
(2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.
(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation.
58. Assistance to a contracting State in certain cases .Where a letter of request is received by the Central Government from a Court or authority in a contracting State requesting for investigation into an offence or proceedings under this Act and forwarding to such Court or authority any evidence connected therewith, the Central Government may forward such letter of request to the Special Court or to any authority under the Act as it thinks fit for execution of such request in accordance with the provisions of this Act or as the case may be, any other law for the time being in force.
[58A. Special Court to release the property – Where on closure of the criminal case or conclusion of a trial in a criminal court outside India under the corresponding law of any other country, such court finds that the offence of money-laundering has not taken place or the property in India is not involved in money-laundering, the Special Court may, on an application moved by the concerned person or the Director, after notice to the other party, order release of such property to the person entitled to receive it.]
[58B. Letter of request of a contracting State or authority for confiscation or release the property. – Where the trial under the corresponding law of any other country cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Central Government shall, on receipt of a letter of request from a court or authority in a contracting State requesting for confiscation or release of property, as the case may be, forward the same to the Director to move an application before the Special Court and upon such application the Special Court shall pass appropriate orders regarding confiscation or release of such property involved in the offence of money-laundering.]

59. Reciprocal arrangements for processes and assistance for transfer of accused persons .

(1) Where a Special Court, in relation to an offence punishable under section 4, desires that
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce a document or other thing, or to produce it, or
(d) a search-warrant, issued by it shall be served or executed at any place in any contracting State, it shall send such summons or warrant in duplicate in such form, to such Court, Judge or Magistrate through such authorities, as the Central Government may, by notification, specify in this behalf and that Court, Judge or Magistrate, as the case may be, shall cause the same to be executed.
(2) Where a Special Court, in relation to an offence punishable under section 4 has received for service or execution
(a) a summons to an accused person, or
(b) a warrant for the arrest of an accused person, or
(c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or
(d) a search-warrant, issued by a Court, Judge or Magistrate in a contracting State, it shall cause the same to be served or executed as if it were a summons or warrant received by it from another Court in the said territories for service or execution within its local jurisdiction; and where
(i) a warrant of arrest has been executed, the person arrested shall, be dealt with in accordance with the procedure specified under section 19;
(ii) a search warrant has been executed, the things found in this search shall, so far as possible, be dealt with in accordance with the procedure specified under sections 17 and 18:
Provided that in a case where a summon or search warrant received from a contracting State has been executed, the documents or other things produced or things found in the search shall be forwarded to the Court issuing the summons or search-warrant through such authority as the Central Government may, by notification, specify in this behalf.
(3) Where a person transferred to a contracting State pursuant to sub-section (2) is a prisoner in India, the Special Court or the Central Government may impose such conditions as that Court or Government deems fit.
(4) Where the person transferred to India pursuant to sub-section (1) is a prisoner in a contracting State, the Special Court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

60. Attachment, seizure and confiscation, etc., of property in a contracting State or India .

(1) Where the Director has made an order for attachment of any [property under section 5 or for freezing under sub-section (J A) of section 17 or where an Adjudicating Authority has made an order relating to a property under section 8 or where a Special Cour t has made an order of confiscation relating to a property under sub-section (5) or sub section (6) of section 8], and such property is suspected to be in a contracting State, the Special Court, on an application by the Director or the Administrator appointed under sub-section (1) of section 10, as the case may be, may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
(2) Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting [attachment, seizure, freezing or confiscation] of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence under [a corresponding law] committed in that contracting State, the Central Government may forward such letter of request to the Director, as it thinks fit, for execution in accordance with the provisions of this Act.
[(2A) Where on closure of the criminal case or conclusion of trial in a criminal court outside India under the corresponding law of any other country, such court finds that the offence of money-laundering under the corresponding law of that country has been committed, the Adjudicating Authority shall, on receipt of an application from the Director for execution of confiscation under sub-section (2), order, after giving notice to the affected persons, that such property involved in money-laundering or which has been used for commission of the offence of money-laundering stand confiscated to the Central Government.]
(3) The Director shall, on receipt of a letter of request under section 58 or section 59, direct any authority under this Act to take all steps necessary for tracing and identifying such property.
(4) The steps referred to in sub-section (3) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institutions or any other relevant matters.
(5) Any inquiry, investigation or survey referred to in sub-section (4) shall be carried out by an authority mentioned in sub-section (3) in accordance with such directions issued in accordance with the provisions of this Act.
(6) The provisions of this Act relating to attachment, adjudication, confiscation and vesting of property in Central Government contained in Chapter III and survey, searches and seizures contained in Chapter V shall apply to the property in respect of which letter of request is received from a Court or contracting State for attachment or confiscation of property.
[(7) When any property in India is confiscated as a result of execution of a request from a contracting State in accordance with the provisions of this Act, the Central Government may either return such property to the requesting State or compensate that State by disposal of such property on mutually agreed terms that would take into account deduction for reasonable expenses incurred in investigation, prosecution or judicial proceedings leading to the return or disposal of confiscated property.]

61. Procedure in respect of letter of request .

Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this Chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned Court in India and in such form and in such manner as the Central Government may, by notification, specify in this behalf.


CHAPTER X

Miscellaneous

62. Punishment for vexatious search .Any authority or officer exercising powers under this Act or any rules made thereunder, who without reasons recorded in writing,
(a) searches or causes to be searched any building or place; or
(b) detains or searches or arrests any person, hall for every such offence be liable on conviction for imprisonment for a term which may extend to two years or fine which may extend to fifty thousand rupees or both.

63. Punishment for false information or failure to give information, etc .(1) Any person wilfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall on conviction be liable for imprisonment for a term which may extend to two years or with fine which may extend to fifty thousand rupees or both.
(2) If any person,
(a) being legally bound to state the truth of any matter relating to an offence under section 3, refuses to answer any question put to him by an authority in the exercise of its powers under this Act; or
(b) refuses to sign any statement made by him in the course of any proceedings under this Act, which an authority may legally require to sign; or
(c) to whom a summon is issued under section 50 either to attend to give evidence or produce books of account or other documents at a certain place and time, omits to attend or produce books of account or documents at the place or time, e shall pay, by way of penalty, a sum which shall not be less than five hundred rupees but which may extend to ten thousand rupees for each such default or failure.
(3) No order under this section shall be passed by an authority referred to in sub-section (2) unless the person on whom the penalty is proposed to be imposed is given an opportunity of being heard in the matter by such authority.
[(4) Notwithstanding anything contained in clause (c) of sub-section (2), a person who intentionally disobeys any direction issued under section 50 shall also be liable to be proceeded against under section 174 of the Indian Penal Code.].

64. Cognizance of offences .

(1) No Court shall take cognizance of any offence under section 62 or sub-section (1) of section 63 except with the previous sanction of the Central Government.
(2) The Central Government shall, by an order either give sanction or refuse to give sanction within ninety days of the receipt of the request in this behalf.

65. Code of Criminal Procedure, 1973 to apply .

The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.

66. Disclosure of information .

The Director or any other authority specified by him by a general or special order in this behalf may furnish or cause to be furnished to
(i) any officer, authority or body performing any functions under any law relating to imposition of any tax, duty or cess or to dealings in foreign exchange, or prevention of illicit traffic in the narcotic drugs and psychotropic substances under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(ii) such other officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify, by notification in the Official Gazette, in this behalf, any information received or obtained by such Director or any other authority, specified by him in the performance of their functions under this Act, as may, in the opinion of the Director or the other authority, so specified by him, be necessary for the purpose of the officer, authority or body specified in clause (i) or clause (ii) to perform his or its functions under that law.

67. Bar of suits in civil Courts .

No suit shall be brought in any civil Court to set aside or modify any proceeding taken or order made under this Act and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything done or intended to be done in good faith under this Act.
68. Notice, etc., not to be invalid on certain grounds .No notice, summons, order, document or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid, or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notice, summons, order, document or other proceeding if such notice, summons, order, document or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.

69. Recovery of fine or penalty – Where any fine or penalty imposed on any person under section 13 or section 63 is not paid within six months from the day of imposition of fine or penalty, the Director or any other officer-authorised by him in this behalf may proceed to recover the amount from the said person in the same manner as prescribed in Schedule II of the Income-tax Act, 1961 for the recovery of arrears and he or any officer authorised by him in this behalf shall have all the powers of the Tax Recovery Officer mentioned in the said Schedule for the said purpose.].

70. Offences by companies .

(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company, for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of any company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Explanation 1. For the purposes of this section,
(i) company means any body corporate and includes a firm or other association of individuals; and
(ii) director, in relation to a firm, means a partner in the firm.
[Explanation 2. – For the removal of doubts, it is hereby clarified that a company may be prosecuted, notwithstanding whether the prosecution or conviction of any legal juridical person shall be contingent on the prosecution or conviction of any individual.]

71. Act to have overriding effect .

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

72. Continuation of proceedings in the event of death or insolvency .

(1) Where
(a) any property of a person has been attached under section 8 and no appeal against the order attaching such property has been preferred; or
(b) any appeal has been preferred to the Appellate Tribunal, and
(i) in a case referred to in clause (a), such person dies or is adjudicated an insolvent before preferring an appeal to the Appellate Tribunal; or
(ii) in a case referred to in clause (b), such person dies or is adjudicated an insolvent during the pendency of the appeal, hen, it shall be lawful for the legal representatives of such person or the official assignee or the official receiver, as the case may be, to prefer an appeal to the Appellate Tribunal or as the case may be, to continue the appeal before the Appellate Tribunal, in place of such person and the provisions of section 26 shall, so far as may be, apply, or continue to apply, to such appeal.
(2) Where
(a) after passing of a decision or order by the Appellate Tribunal, no appeal has been preferred to the High Court under section 42; or
(b) any such appeal has been preferred to the High Court, hen
(i) in a case referred to in clause (a), the person entitled to file the appeal dies or is adjudicated an insolvent before preferring an appeal to the High Court, or
(ii) in a case referred to in clause (b), the person who had filed the appeal dies or is adjudicated an insolvent during the pendency of the appeal before the High Court, then, it shall be lawful for the legal representatives of such person, or the official assignee or the official receiver, as the case may be, to prefer an appeal to the High Court or to continue the appeal before the High Court in place of such person and the provision of section 42 shall, so far as may be, apply or continue to apply to such appeal.
(3) The powers of the official assignee or the official receiver under sub-section (1) or sub-section (2) shall be exercised by him subject to the provisions of the Presidency-towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be.

73. Power to make rules .

(1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the form in which records referred to in this Act may be maintained;
[(aa) the manner of provisional attachment of property under sub-section (I) of section 5;]
(b) the manner in which the order and the material referred to in sub-section (2) of section 5 to be maintained;
(c) matters in respect of experience of Members under the proviso to sub-section (3) of section 6;
(d) the salaries and allowances payable to and other terms and conditions of service of Members of the Adjudicating Authority under sub-section (9) of section 6;
(e) the salaries and allowances payable to the other terms and conditions of service of the officers and employees of the Adjudicating Authority under sub-section (3) of section 7;
[(ee) the manner of seizing or taking possession of property attached under section 5 or frozen under sub-section (lA) of section 17 or under sub-section (4) of section 8;]
(f) the manner in which and the conditions subject to which the properties confiscated may be received and managed under sub-section (2) of section 10;
(g) the additional matters in respect of which the Adjudicating Authority may exercise the powers of a civil Court under clause (f) of sub-section (1) of section 11;
(h) [***]
(i) the [the nature and value of transactions and the time within which] the information of transactions under clause (b) of sub-section (1) of section 12 shall be furnished;
[(J) the manner and the conditions in which identity of clients shall be verified by the reporting entities under clause (c) of sub-section (I) of section 12;
(JJ) the manner of identifying beneficial owner, if any, from the clients by the reporting entities under clause (d) of sub-section (I) of section 12;
(JJJ) the period of interval in which the reports are sent by the reporting entities or any of its employees under clause (c) of sub-section (2) of section 13;]
(k) the procedure and the manner of maintaining and furnishing information under sub-section (1) of section 11 as required under section 15;
(l) the manner in which the reasons and material referred to in sub-section (2) of section 16 shall be mentioned;
(m) the rules relating to search and seizure under sub-section (1) of section 17;
(n) the manner in which the reasons and the material referred to in sub-section (2) of section 17 shall be maintained.
(o) the manner in which the reasons and the material referred to in sub-section (2) of section 18 shall be maintained;
(p) the manner in which the order and the material referred to in sub-section (2) of section 19 shall be maintained;
[(pp) the manner in which the forwarding of the order for retention or continuation of freezing of the property and the period of keeping such order and material under sub-section (2) of section 20;].
(q) the manner in which records authenticated outside India may be received under sub-section (2) of section 22;
(r) the form of appeal and the fee for filing such appeal, under sub-section (3) of section 26;
(s) the salary and allowances payable to and the other [terms and conditions of service (including tenure of office)] of the Chairperson and other Members of the Appellate Tribunal under section 30;
(t) the salaries and allowances and the conditions of service of the officers and employees of the Appellate Tribunal under sub-section (3) of section 34;
(u) the additional matters in respect of which the Appellate Tribunal may exercise the powers of a civil Court under clause (i) of sub-section (2) of section 35;
[(ua) conditions subject to which a police officer may be authorised to investigate into an offence under sub-section (1-A) of section 45;]
(v) the additional matters in respect of which the authorities may exercise powers of a civil Court under clause (f) of sub-section (1) of section 50;
(w) the rules relating to impounding and custody of records under sub-section (5) of section 50.
(x) any other matter which is required to be, or may be, prescribed.

74. Rules to be laid before Parliament .Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

75. Power to remove difficulties .(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty:
Provided that no order shall be made under this section after the expiry of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.


The Schedule
[See section 2(y)]
[Part A
Paragraph 1
Offences Under The Indian Penal Code (45 of 1860)
Section -Description of offence
120B-Criminal conspiracy.
121-Waging or attempting to wage war or abetting waging of war, against the Government of India.
121A-Conspiracy to commit offences punishable by section 121 against the State.
255-Counterfeiting Government stamp.
257-Making or selling instrument for counterfeiting Government stamp.
258-Sale of counterfeit Government stamp.
259-Having possession of counterfeit Government stamp.
260-Using as genuine a Government stamp known to be counterfeit.
302-Murder.
304-Punishable for culpable homicide not amounting to murder.
307-Attempt to murder.
308-Attempt to commit culpable homicide.
327-Voluntarily causing hurt to extort property, or to constrain to an illegal act.
329-Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act.
364A-Kidnapping for ransom, etc.
384 to 389-Offences relating to extortion.
392 to 402-Offences relating to robbery and dacoity.
411-Dishonestly receiving stolen property.
412-Dishonestly receiving property stolen in the commission of a dacoity.
413-Habitually dealing in stolen property.
414-Assisting in concealment of stolen property.
417-Punishment for cheating.
418-Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.
419-Punishment for cheating by personation.
420-Cheating and dishonestly inducing delivery of property.
421-Dishonest or fraudulent removal or concealment of property to prevent distribution among creditors.
422-Dishonestly or fraudulently preventing debt being available for creditors.
423-Dishonest or fraudulent execution of deed of transfer containing false statement of consideration.
424-Dishonest or fraudulent removal or concealment of property.
467-Forgery of valuable security, will, etc.
471-Using as genuine a forged document or electronic record.
472-and 473 Making or possessing counterfeit seal, etc., with intent to commit forgery.
475-and 476 Counterfeiting device or mark.
481-Using a false property mark.
482-Punishment for using a false property mark.
483-Counterfeiting a property mark used by another.
484-Counterfeiting a mark used by a public servant.
485-Making or possession of any instrument for counterfeiting a property mark.
486-Selling goods marked with a counterfeit property mark.
487-Making a false mark upon any receptacle containing goods.
488
Punishment for making use of any such false mark.
489A
Counterfeiting currency notes or bank notes.
489B
Using as genuine, forged or counterfeit currency notes or bank notes.
Paragraph 2
Offences Under The Narcotic Drugs And Psychotropic Substances Act, 1985
(61 of 1985)
Section
Description of offence
15
Contravention in relation to poppy straw.
16
Contravention in relation to coca plant and coca leaves.
17
Contravention in relation to prepared opium.
18
Contravention in relation to opium poppy and opium.
19
Embezzlement of opium by cultivator.
20
Contravention in relation to cannabis plant and cannabis.
21
Contravention in relation to manufactured drugs and preparations.
22
Contravention in relation to psychotropic substances.
23
Illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances.
24
External dealings in narcotic drugs and psychotropic substances in contravention of section 12 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
25A
Contravention of orders made under section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
27A
Financing illicit traffic and harbouring offenders.
29
Abetment and criminal conspiracy.
Paragraph 3
Offences Under The Explosive Substances Act,1908
(6 of 1908)
Section
Description of offence
3
Causing explosion likely to endanger life or property.
4
Attempt to cause explosion, or for making or keeping explosives with intent to endanger life or property.
5
Making or possessing explosives under suspicious circumstances.
Paragraph 4
Offences Under The Unlawful Activities (Prevention) Act, 1967
(37 of 1967)
Section
Description of offence
10 read with section 3
Penalty for being member of an unlawful association, etc.
11 read with section 3
Penalty for dealing with funds of an unlawful association.
13 read with section 3
Punishment for unlawful activities.
16 read with section 15
Punishment for terrorist act.
16A
Punishment for making demands of radioactive substances, nuclear devices, etc.
17
Punishment for raising funds for terrorist act.
18
Punishment for conspiracy, etc.
18A
Punishment for organising of terrorist camps.
18B
Punishment for recruiting of any person or persons for terrorist act.
19
Punishment for harbouring, etc.
20
Punishment for being member of terrorist gang or organisation.
21
Punishment for holding proceeds of terrorism.
38
Offence relating to membership of a terrorist organisation.
39
Offence relating to support given to a terrorist organisation.
40
Offence of raising fund for a terrorist organisation.
Paragraph 5

Offences Under The Arms Act, 1959 (54 of 1959)
Section -Description of offence
25
To manufacture, sell, transfer, convert, repair or test or prove or expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5 of the Arms Act, 1959.
To acquire, have in possession or carry any prohibited arms or prohibited ammunition in contravention of section 7 of the Arms Act, 1959.
Contravention of section 24A of the Arms Act, 1959 relating to prohibition as to possession of notified arms in disturbed areas, etc.
Contravention of section 24B of the Arms Act, 1959 relating to prohibition as to carrying of notified arms in or through public places in disturbed areas.
Other offences specified in section 25.
26
To do any act in contravention of any provisions of section 3, 4, 10 or section 12 of the Arms Act, 1959 in such manner as specified in sub-section (1) of section 26 of the said Act.
To do any act in contravention of any provisions of section 5, 6, 7 or section 11 of the Arms Act, 1959 in such manner as specified in sub-section (2) of section 26 of the said Act.
Other offences specified in section 26.
27
Use of arms or ammunition’s in contravention of section 5 or use of any arms or ammunition in contravention of section 7 of the Arms Act, 1959.
28
Use and possession of fire arms or imitation fire arms in certain cases.
29
Knowingly purchasing arms from unlicensed person or for delivering arms, etc., to person not entitled to possess the same.
30
Contravention of any condition of a licence or any provisions of the Arms Act, 1959 or any rule made thereunder.
Paragraph 6

Offences Under The Wild Life (Protection) Act, 1972 (53 of 1972)
Section-Description of offence
51 read with section 9
Hunting of wild animals.
51 read with section 17A
Contravention of provisions of section 17A relating to prohibition of picking, uprooting, etc., of specified plants.
51 read with section 39
Contravention of provisions of section 39 relating to wild animals, etc., to be Government property.
51 read with section 44
Contravention of provisions of section 44 relating to dealings in trophy and animal articles without licence prohibited.
51 read with section 48
Contravention of provisions of section 48 relating to purchase of animal, etc., by licensee.
51 read with section 49B
Contravention of provisions of section 49B relating to prohibition of dealings in trophies, animals articles, etc., derived from scheduled animals.
Paragraph 7
Offences Under The Immoral Traffic (Prevention) Act, 1956
(104 of 1956)
Section
Description of offence
5
Procuring, inducing or taking person for the sake of prostitution.
6
Detaining a person in premises where prostitution is carried on.
8
Seducing or soliciting for purpose of prostitution.
9
Seduction of a person in custody.
Paragraph 8
Offences Under The Prevention Of Corruption Act, 1988
(49 of 1988)
Section
Description of offence
7
Public servant taking gratification other than legal remuneration in respect of an official act.
8
Taking gratification in order, by corrupt or illegal means, to influence public servant.
9
Taking gratification for exercise of personal influence with public servant.
10
Abetment by public servant of offences defined in section 8 or section 9 of the Prevention of Corruption Act, 1988.
13
Criminal misconduct by a public servant.
Paragraph 9
Offences Under The Explosives Act, 1884
(4 of 1884)
Section
Description of offence
9B
Punishment for certain offences.
9C
Offences by companies.
Paragraph 10
Offences Under The Antiquities And Arts Treasures Act, 1972
(52 of 1972)
Section
Description of offence
25 read with section 3
Contravention of export trade in antiquities and art treasures.
28
Offences by companies.
Paragraph 11
offences Under The Securities And Exchange Board Of India Act, 1992
(15 of 1992)
Section
Description of offence
12A read with section 24
Prohibition of manipulative and deceptive devices, insider trading and substantial.
24
Acquisition Of Securities Or Control.
Paragraph 12
Offences Under The Customs Act, 1962
(52 of 1962)
Section
Description of offence
135
Evasion of duty or prohibitions.
Paragraph 13
Offences Under The Bonded Labour System (Abolition) Act, 1976
(19 of 1976)
Section
Description of offence
16
Punishment for enforcement of bonded labour.
18
Punishment for extracting bonded labour under the bonded labour system.
20
Abetment to be an offence.
Paragraph 14
Offences Under The Child Labour (Prohibition And Regulation) Act, 1986
(61 of 1986)
Section
Description of offence
14
Punishment for employment of any child to work in contravention of the provisions of section 3
Paragraph 15
Offences Under The Transplantation Of Human Organs Act, 1994
(42 of 1994)
Section
Description of offence
18
Punishment for removal of human organ without authority.
19
Punishment for commercial dealings in human organs.
20
Punishment for contravention of any other provision of this Act.
Paragraph 16
Offences Under The Juvenile Justice (Care And Protection Of Children) Act, 2000
(56 of 2000)
Section
Description of offence
23
Punishment for cruelty to juvenile or child.
24
Employment of juvenile or child for begging.
25
Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to juvenile or child.
26
Exploitation of juvenile or child employee.
Paragraph 17
Offences Under The Emigration Act, 1983
(31 of 1983)
Section
Description of offence
24
Offences and penalties.
Paragraph 18
Offences Under The Passports Act, 1967
(15 of 1967)
Section
Description of offence
12
Offences and penalties.
Paragraph 19
Offences Under The Foreigners Act, 1946
(31 of 1946)
Section
Description of offence
14
Penalty for contravention of provisions of the Act, etc.
14B
Penalty for using forged passport.
14C
Penalty for abetment.
Paragraph 20
Offences Under The Copyright Act, 1957
(14 of 1957)
Section
Description of offence
63
Offences of infringement of copyright or other rights conferred by this Act.
63A
Enhanced penalty on second and subsequent convictions.
63B
Knowing use of infringing copy of computer programme.
68A
Penalty for contravention of section 52A.
Paragraph 21
Offences Under The Trade Marks Act, 1999
(47 of 1999)
Section
Description of offence
103
Penalty for applying false trade marks, trade descriptions, etc.
104
Penalty for selling goods or providing services to which false trade mark or false trade description is applied.
105
Enhanced penalty on second or subsequent conviction.
107
Penalty for falsely representing a trade mark as registered.
120
Punishment of abetment in India of acts done out of India.
Paragraph 22
Offences Under The Information Technology Act, 2000
(21 of 2000)
Section
Description of offence
72
Penalty for breach of confidentiality and privacy.
75
Act to apply for offence or contravention committed outside India.
Paragraph 23
Offences Under The Biological Diversity Act, 2002
(18 of 2003)
Section
Description of offence
55 read with section 6
Penalties for contravention of section 6, etc.
Paragraph 24
Offences Under The Protection Of Plant Varieties And Farmers Rights Act, 2001
(53 of 2001)
Section
Description of offence
70 read with section 68
Penalty for applying false denomination, etc.
71 read with section 68
Penalty for selling varieties to which false denomination is applied.
72 read with section 68
Penalty for falsely representing a variety as registered.
73 read with section 68
Penalty for subsequent offence.
Paragraph 25
Offences Under The Environment Protection Act, 1986
(29 of 1986)
Section
Description of offence
15 read with section 7
Penalty for discharging environmental pollutants, etc., in excess of prescribed standards.
15 read with section 8
Penalty for handling hazardous substances without complying with procedural safeguards.
Paragraph 26
Offences Under The Water (Prevention And Control Of Pollution) Act, 1974
(6 of 1974)
Section
Description of offence
41 (2)
Penalty for pollution of stream or well.
43
Penalty for contravention of provisions of section 24.
Paragraph 27
Offences Under The Air (Prevention And Control Of Pollution) Act, 1981
(14 of 1981)
Section
Description of offence
37
Failure to comply with the provisions for operating industrial plant.
Paragraph 28
Offences Under The Suppression Of Unlawful, Acts Against Safety Of Maritime Navigation And Fixed Platforms On Continental Shelf Act, 2002
(69 of 2002)
Section
Description of offence
3
Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.]
Part B
[Part B omitted by Act No. 2 of 2013]

[PART C
An offence which is the offence of cross border implications and is specified in,-
(1) Part A; or
(2) [* * *]
(3) the offences against property under Chapter XVII of the Indian Penal Code.]
[(4) The offence of wilful attempt to evade any tax, penalty or interest referred to in section 51 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015.]


MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION
New Delhi, the 17th January, 2014
G.S.R. 30(E).-In exercise of the powers conferred by clause (ii) of section 66 of the Prevention of Money Laundering Act, 2002 (15 of 2003), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance, Department of Revenue, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 381(E), dated the 27th June, 2006, namely:-
In the said notification, after serial number (16) and the entry relating thereto, the following serial number and entry shall be inserted, namely:-
“(17) Competition Commission of India.”
[F. No. P.12011/2/2009-S.O.(E.S. Cell)]
BIPLAB KUMAR NASKAR, Under Secy.


Rohit Tandon Vs. The Enforcement Directorate [SC 2017 NOV]

KEYWORDS: BAIL DENIED-MONEY LAUNDERING

Capture

The fact that the investigation in the predicate offence instituted in terms of FIR No.205/2016 or that the investigation qua the appellant in the complaint CC No.700/2017 is completed; and that the proceeds of crime is already in possession of the investigating agency and  provisional attachment order in relation thereto passed on 13th February, 2017 has been confirmed; or that chargesheet has been filed in FIR No.205/2016 against the appellant without his arrest; that the appellant has been lodged in judicial custody since 2nd January, 2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence.

  • The grant or denial of bail is regulated to a large extent by the facts and circumstances of each case

ACTS : Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 -bail application under Section 439 of the Cr.P.C.

DATES:10th November, 2017

BENCH: CJI. (Dipak Misra) (A.M. Khanwilkar) (D.Y. Chandrachud)

HISTORY: The appellant first approached the Additional Sessions Judge, South East Saket Court, New Delhi for releasing him on bail by way of an application under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Act of 2002. The said bail application came to be rejected vide judgment dated 7th January, 2017 by the said Court. The appellant thereafter approached the High Court of Delhi at New Delhi by way of Bail Application No.119 of 2017 and an interlocutory application filed therein, being Criminal M.B. No.121 of 2017. The High Court independently considered the merits of the arguments but eventually rejected the prayer for bail vide impugned judgment dated 5th May, 2017.


 

SUPREME COURT OF INDIA

Rohit Tandon Vs. The Enforcement Directorate

[Criminal Appeal Nos.1878-1879 of 2017 arising out of SLP (CRL.) No. 6896-6897 of 2017]

A.M. Khanwilkar, J.

1. By these appeals the order of the High Court of Delhi at New Delhi dated 5th May, 2017, rejecting the Bail Application No.119 of 2017 and Criminal M.B. No.121 of 2017 has been assailed. The appellant was arrested on 28th December, 2016 in connection with ECIR/18/DZII/ 2016/AD(RV) registered under Sections 3 & 4 of the Prevention of Money Laundering Act, 2 2002 (hereinafter referred to as “the Act of 2002”). The said ECIR was registered on 26th December, 2016 as a sequel to FIR No.205/2016 dated 25th December, 2016 in relation to the offences punishable under Sections 420, 406, 409, 468, 471, 188 and 120B of the Indian Penal Code, 1860 (“IPC” for short). The said FIR was registered by the Crime Branch of Delhi Police, New Delhi. The ECIR, however, has been registered at the instance of Assistant Director (PMLA), Directorate of Enforcement, empowered to investigate the offences punishable under the Act of 2002.

2. The appellant first approached the Additional Sessions Judge, South East Saket Court, New Delhi for releasing him on bail by way of an application under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Act of 2002. The said bail application came to be rejected vide judgment dated 7th January, 2017 by the said Court. The appellant thereafter approached the High Court of Delhi at New Delhi by way of Bail Application No.119 of 2017 and an interlocutory application filed therein, being Criminal M.B. No.121 of 2017. The High Court independently considered the merits of the arguments but eventually rejected the prayer for bail vide impugned judgment dated 5th May, 2017.

3. The ECIR has been registered against Ashish Kumar, Raj Kumar Goel and other unknown persons for offences punishable under Sections 3/4 of the Act of 2002 on the basis of information/material, as evident from the predicate offence registered by P.S. Crime Branch, Delhi against the named accused and unknown accused for offences punishable under Sections 420, 406, 409, 467, 468, 471, 188 and 120B of IPC, being FIR No.205/2016 dated 25th December, 2016. The relevant facts noted in the ECIR read thus:

“A. It is reported that during the course of investigation of Case FIR No.242/16 u/s 420, 467,468,471, 120B IPC, PS C.R. Park, Delhi, it is revealed that Accused Raj Kumar Goel along with associates are engaged into earning profits by routing money into various accounts by using forged documents and thereby receiving commission from the prospective clients who either need money by cheque or in cash. In order to obtain large profits, accused Raj Kumar Goel and few of his associates have opened many Bank Accounts in Kotak Mahindra and ICICI Bank at Naya Bazar, Chandni Chowk, Delhi.

B. On 08.11.2016, the Government if India announced demonetization of one thousand( 1000) and five hundred (500) rupee notes. On this accused Raj Kumar Goel conspired with the bank manager of Kotak Mahindra Bank, Cannaught Place, namely Ashish Kumar r/o A701, Bestech Park, Sector 61, Gurugram, Haryana and one Chartered Accountant, name unknown, having mobile number 9711329619 to earn huge profit by converting black money in the form of old currency 4 notes into new currency notes. In this conspiracy, the said CA acted as a mediator and arranged prospective clients who intended to convert their black money into legitimate money. For the same, alleged CA offered 2% commission to the other accused persons on all such transactions.

C. The accused were having bank accounts in the Naya Bazar branch of Kotak Mahindra Bank but the CA and Bank Manager Ashish asked accused Raj Kumar to deposit old currency notes in Cannaught Place branch of Kotak Mahindra Bank. It is also revealed that the accused opened bank accounts in the name of Quality Trading Company, Swati Trading Company, Shree Ganesh Enterprises, R.K. International, Mahalxmi Industires, Virgo International and Sapna International on the basis of forged/false documents and deposited approx. Rs.25 Crore after the demonetization.

As per the preliminary investigation of the said case it is transpired that accused Raj Kumar Goel, Bank Manager Ashish, CA along with their associates are involved in a deep roted conspiracy and were indulged in converting old currency which were entrusted to bank/Govt officials and were supposed to be delivered to general public/guidelines issued by the Reserve Bank of India/Ministry of Finance and hand thus cheated the public at large. The accused persons have also caused monetary loss to the Govt. of India and thereby Committed offences u/s 420, 406, 409, 467, 468, 471, 188, 120B IPC.”

It is then noted that the offences under Sections 420, 468, 471 and 120B of IPC are scheduled offences under the Act of 2002 and that from the available facts, a reasonable inference is drawn that the named accused and unknown accused have made illegal earnings arising out of the said criminal conspiracy which might have undergone the process of laundering and thereby an offence under Section 3 of the Act of 2002 was made out. It is noted that prima facie case for 5 commission of offence under Section 3 punishable under Section 4 of the Act of 2002 was made out and accordingly the case is being registered and taken up for investigation under the Act of 2002 and rules framed thereunder.

4. The learned Sessions Judge while considering the bail application adverted to the relevant materials including the CDR analysis of Mobile number of Ashish Kumar, Branch Manager, Kotak Mahindra Bank, K.G. Marg Branch, Kamal Jain, CA of Rohit Tandon (hereinafter referred to as “appellant”), Dinesh Bhola, Raj Kumar Goel; the statements of Kamal Jain, Dinesh Bhola and Ashish Kumar, recorded under Section 50 of the Act of 2002; and analysis of bank statements of stated companies. All these reveal that Ashish Kumar conspired with other persons to get deposited Rs.38.53 Crore in cash of demonetized currency into bank accounts of companies and got demand drafts issued in fictitious names with intention of getting them cancelled and thereby converting the demonetized currency into monetized currency on commission basis.

Further, the investigation also revealed that the entire cash was collected on the instructions of the appellant herein, by Ashish Kumar, Raj Kumar Goel and others through Dinesh Bhola, an employee of the appellant. According to the prosecution, all the associates of the appellant acted on instructions of the appellant for getting issued the demand drafts against cash deposit with the help of Ashish Kumar, Branch Manager of Kotak Mahindra Bank and others, to the tune of Rs.34.93 Crore from Kotak Mahindra Bank, K.G. Marg Branch. It was also noted that the demand drafts of Rs.3.60 Crore were issued in fictitious names on the instructions of Bank Manager Ashish Kumar in lieu of commission received by him in old cash currency.

The demand drafts amounting to Rs.38 Crore were issued in favour of Dinesh Kumar and Sunil Kumar which were recovered from the custody of Kamal Jain who had kept the same on the instructions of the appellant. Out of the said amount, the demand drafts of other banks, apart from Kotak Mahindra Bank Limited, were also recovered. The prosecution suspected that there could be other dubious transactions made by the appellant in other banks and that Ashish Kumar, Bank Manager and others were acting on the instructions of the appellant for executing the crime.

5. The Sessions Court rejected the argument of the appellant that the investigation of the offence registered against the appellant and others under Section 3/4 of the Act of 2002 being a sequel to the FIR registered by the Crime Branch of Delhi Police, it cannot be investigated by the Enforcement Directorate. For, the Enforcement Directorate was not concerned with the outcome of the investigation of the predicate offence registered by the Delhi Police. It thus opined that the matter on hand must be examined only in reference to the registration of ECIR by the Enforcement Directorate. The fact that the investigation in FIR registered by the Crime Branch of Delhi Police, bearing FIR No.205/2016, had not commenced will also be of no avail to the appellant.

The Sessions Court also found that as per Section 19 of the Act of 2002, the only condition to be satisfied for arrest of a person is the reasonable belief of the authority gathered on the basis of material in its possession. Further, in the present case, the accused was arrested by the competent authority on the basis of material in his possession giving rise to a reasonable belief about the complicity of the accused in the commission of 8 offence punishable under the Act of 2002. As such the arrest of the appellant under the Act of 2002 cannot be termed as illegal. After having dealt with those contentions, the Sessions Court took note of the material pressed into service by the prosecution and analysed the same in the following words:

“21. Pursuant to registration of FIR No.205/2016 under section 420, 406, 409, 468, 471, 188, 120B IPC by Crime Branch, the matter was taken up by ED and ECIR No.18/16 was opened for investigation. Transaction statements of accounts in Kotak Mahindra Bank in FIR No.205/16 in respect of companies i.e. Delhi Training Company, Kwality Tading Company, Mahalaxmi Industries, R.K. International, Sapna Trading Company, Shree Ganesh Enterprises, Swastik Trading Company arid Virgo International were sought and scrutinized, Huge cash deposits in the said accounts were identified during November, 2016, post demonetization announcement it was found that demand drafts were issued in fictitious names like Dinesh Kumar, Sunil Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai.

22. Statement of Ashish Kumar, accused named in FIR No.205/16, Branch Manager, Kotak Mahindra Bank, K.G. Marg branch was recorded under section 50 of PMLA which revealed that Kamal Jain, CA of accused Rohit Tandon contacted him to get the demonetized currency on behalf of accused/applicant, converted into monetized currency on commission basis.

The commission of Ashish Kumar was decided @ 35%, who in turn contacted one Yogesh Mittal and Rajesh Kumar Goel, accused in FIR No.205/16 to carry out the criminal design of getting the demonetized cash converted into monetized valuable form. Demonetized currency was deposited in different accounts of companies pertaining to Raj Kumar Goel besides others through Raj Kumar Goel with the help of Ashish Kumar in different bank accounts of Kotak Mahindra Bank and DDs were issued in fictitious names.

The illegal conversion of demonetized currency, getting the same deposited and issuance of demand drafts is corroborated through CDR  analysis of relevant persons for the relevant period. Dinesh Bhola and Kamal Jain, in their statements recorded under section 50 of PMLA have also confirmed and reiterated the facts as stated by Ashish Kumar, the Branch Manager. The statements of persons recorded under section 50 of PMLA, which has evidentiary value under section 50(4) of PMLA, have confirmed that the old demonetized currency pertains to accused Rohit Tandon and the conspiracy was executed on his instructions.

23. Lastly, it was submitted by learned senior counsel for accused that accused fully cooperated with the investigating agency and there was no need to arrest him in this case. He further submitted that the actions of Accused persons as mentioned in the FIR attract implications and as such the correct authority to investigate into the same is the Income Tax Department and not the ED. Per contra, learned Special Prosecutor for ED submitted that accused only cooperated in the investigation in ECIR No.14/16 and not in ECIR No. 18/16. He further submitted that as sufficient material surfaced on record against the present accused and he did not cooperate in the investigation in the present case, therefore, accused Rohit Tandon was arrested in this case. He submitted that he does not dispute the jurisdiction of Income Tax Department so far as other aspects of the matter are concerned.

24. As per section 45 of PMLA, while considering grant of bail to accused, the court has to satisfy that:i. There are reasonable grounds for believing that accused is not guilty of such offence and that ii. He is not likely to commit any offence, while on bail.

25. In the present case, accused has failed to satisfy this court that he is not guilty of alleged offence punishable under section 3 of PMLA. He has not been able to discharge the burden as contemplated under section 24 of the Act.

26. Accused is alleged to have been found involved in a white collar crime. The alleged offence was committed by accused in conspiracy with other coaccused persons in a well planned and thoughtful manner. It has been observed in a catena of decisions by Hon’ble Superior Courts that economic 10 offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public, funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.”

(emphasis supplied)

6. Having formed that opinion and noticing that the investigation was at the initial and crucial stage and that the source of funds of proceeds of crime was yet to be ascertained till then and that the recovery of balance proceeds of crime was in the process, the question of enlarging the appellant on bail does not arise, more so, when there was every possibility that he may tamper with the evidence and influence the material prosecution witnesses. Accordingly, the bail application was rejected by the Sessions Court vide judgment and order dated 7th January, 2017.

7. Aggrieved, the appellant approached the High Court of Delhi by way of bail application under Section 439 of the Cr.P.C. read with Section 45 of the Act of 2002. The High Court independently analysed all the contentions raised by the appellant and after adverting to the relevant materials, rejected the application for grant of bail preferred by the appellant. The High Court found that the Act of 2002 does not prescribe that the Enforcement Directorate is debarred from conducting investigation in relation to the offences under Sections 3 & 4 of the Act of 2002 unless the Crime Branch concludes its investigation in relation to FIR No.205/2016 or was to file chargesheet for commission of scheduled offence.

Further, the proceedings under the Act of 2002 are distinct from the proceedings relating to scheduled offence and both the investigations can continue independently. The High Court then noted that Section 44 of the Act of 2002 is an enabling provision, to have a joint trial in such a situation to avoid conflicting and multiple opinions of the Courts. But proceeded to hold that the said possibility would arise only when the chargesheet is filed after completion of investigation in relation to FIR No.205/2016 and the case is committed to the concerned Court.

The High Court held that Section 44 of the Act of 2002 does not envisage a joint investigation but is a provision stipulating that the trial of offence under Section 3/4 of the Act of 2002 and any scheduled offence connected to the offence under that section may be tried only by the Special Court constituted for the area in which the offence has been committed. While considering the merits of the allegations against the appellant, in particular, the materials on record, the High Court analysed the same in the following words:

“14. In FIR No.205/2016 allegations are that Raj Kumar Goel; Ashish Kumar, Bank Manager, Kotak Mahindra Bank, K.G.Marg Branch and others conspired for illegal conversion of demonetized currency notes into monetized currency by way of depositing cash in various accounts of the firms and subsequently getting Demand Drafts issued in fictitious names.

It is further alleged in the said FIR that accused therein opened bank accounts in the name of ‘Group of Companies’ in Kotak Mahindra Bank. In ECIR No.18, transactions statements of accounts were collected pertaining to these ‘Group of Companies’ from Kotak Mahindra Bank and it emerged that from 15.11.2016 to 19.11.2016, there was huge cash deposit to the tune of `31.75 crores by Raj Kumar Goel and his associates. It was also found that the Demand Drafts amounting to `38 crores were issued in fictitious names during that period. It cannot be said at this stage that offences referred in FIR No.205/2016 and the ECIR No.18 have no nexus.

15. Prosecution under Section 45 of PMLA for commission of offence under Section 3 punishable under Section 4 of PMLA has already been initiated by ED in the Special Court. By an order dated 25.02.2017, learned Addl. Sessions Judge / Special Court (PMLA) has taken cognizance against Rohit Tandon (present petitioner), Ashish Kumar and Raj Kumar Goel. Dinesh Bhola and Kamal Jain have also been summoned to face trial under Section 4 of PMLA. Raj Kumar Goel and Ashish Kumar continue to be in custody in the said proceedings.

16. On perusal of the complaint lodged under Section 45 PMLA, it reveals that serious and grave allegations have been leveled against the petitioner and others. The allegations are categorical and specific; definite role has been assigned to each accused. It is alleged that during the period from 15.11.2016 to 19.11.2016, huge cash to the tune of `31.75 crores was deposited in eight bank accounts in Kotak 13 Mahindra Bank in the accounts of the ‘Group of Companies’. It gives details of Demand Drafts issued during 15.11.2016 to 19.11.2016 from eight bank accounts in the name of Sunil Kumar, Dinesh Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai on various dates. Most of the Demand Drafts issued have since been recovered. Its detail finds mention in Table No.2 given in the complaint.

17. During arguments, specific query was raised and the learned Senior Counsel for the petitioner was asked as to, to whom the money deposited in the various accounts belonged. Learned Senior Counsel for the petitioner was fair enough to admit that the whole money belonged to the petitioner. When enquired as to from which ‘source’, huge cash was procured, there was no clear response to it. Again, learned Senior Counsel for the petitioner was asked as to how the cash belonging to the petitioner happened to be deposited in various accounts of the ‘Group of Companies’ which were not owned by the petitioner and what was its purpose.

It was further enquired as to why the Demand Drafts were got issued in the names of the persons referred above and what was its specific purpose. Learned Senior Counsel for the petitioner avoided to answer these queries stating that the defence of the petitioner could not be disclosed at this juncture to impact his case during trial. Apparently, no plausible explanation has been offered as to what forced the petitioner to deposit the old currency to the tune of `31.75 crores in eight accounts of the different ‘Group of Companies’ in Kotak Mahindra Bank during the short period from 15.11.2016 to 19.11.2016. There was no explanation as to why the Demand Drafts for the said amount were got issued in the name of sham people whose identity was not known.

The purpose of all this exercise seemingly was to deposit the cash (old currency) first, get the Demand Drafts issued in fictitious names and obtain monetized currency by cancelling them subsequently. The petitioner also did not place on record any document whatsoever to show as to from which legal source, the cash was procured to deposit in the bank accounts of strangers. I find no substance in the petitioner’s plea that petitioner’s only liability was to pay income tax on the unaccounted money / income. In my considered view, mere payment of tax on the unaccounted money from any ‘source’ whatever would not convert it into ‘legal’ money. Needless to say, huge deposit was a sinister attempt / strategy by the petitioner and others to convert the ‘old currency’ into new one to frustrate the Demonetization Policy primarily meant to unearth black money.

18. Allegations against the petitioner are not without substance. The prosecution has recorded statements of the petitioner on various dates and that of Dinesh Bhola, Ashish Kumar (Branch Manager, Kotak Mahindra Bank), Raj Kumar Goel, Kamal Jain (petitioner’s Chartered Accountant), Vimal Negi, Jivan Singh and Varun Tandon under Section 50 PMLA on various dates. There statements have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case. The prosecution has further relied upon Call Data Records, CCTV footage, Account Trend Analysis.”

(emphasis supplied)

8. The High Court opined that keeping in mind the rigors of Section 45 of the Act of 2002 for the release of the accused charged under Part A of the Schedule, on bail, coupled with the antecedents of the appellant of being involved in other similar crime registered as FIR No.197/2016, for offence under Section 420, 409, 188, 120B of IPC dated 14th December, 2016 by Crime Branch and ECIR No.14/DZ/II/2016 registered on 16th December, 2016 by Enforcement Directorate for offences under Sections 3/4 of the Act of 2002. Further, during a raid conducted jointly by the Crime Branch and Income Tax Department on 10th December, 2016 at around 10.00 P.M. at the office premises of the appellant, currency of Rs.13.62 Crore was recovered including new currency in the denomination of Rs.2000/amounting to Rs.2.62 Crore.

In addition, the appellant had surrendered Rs.128 Crore during the raid conducted by the Income Tax Department on 6/8 October, 2016 in his office and residential premises. No reliable and credible documents were forthcoming from the appellant about the source from where he had obtained such a huge quantity of cash. The possibility of the same being proceeds of crime cannot be ruled out. Hence, it noted that the question of granting bail did not arise, taking into consideration the serious allegations against the appellant and other facts including severity of the punishment prescribed by law. Accordingly, the bail application of the appellant came to be rejected. As a consequence, the pending application which was considered along with the bail application was also disposed of by the impugned judgment and order dated 5th May, 2017 passed by the High Court.

9. We have heard Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant and Mr. Tushar Mehta, learned Additional Solicitor General for the Union of India. They have also filed written submissions.

10. Before we analyse the rival submissions, for the completion of record, we must mention that after the impugned judgment, the Crime Branch filed the chargesheet before the appropriate Court in relation to FIR No.205/2016 on 24th June, 2017. Similarly, the Enforcement Directorate has filed supplementary complaint CC No.700/2017 in relation to ECIR 18/2016, which refers to further material gathered during the investigation, indicating the complicity of the concerned accused in the crime for offence punishable under Section 3 of the Act of 2002. A comprehensive supplementary complaint has been filed before the District and Sessions Judge, Saket, New Delhi (Designated Court under the Prevention of MoneyLaundering Act, 2002) on 2nd August, 2017.

11. Before this supplementary complaint was filed, the appellant preferred second bail application in the present case 17 before the High Court of Delhi at New Delhi, being Bail Application No.1361/2017. This application was filed on 12th July, 2017. Along with the said bail application the appellant filed an application being Criminal M.A. No.1293 of 2017 for directing his interim release in connection with ECIR/DZ/II/2016 on the assertion that his mother was seriously ill and required immediate medical attention because of the injuries suffered by her on 20th June, 2017.

The said interim release application was allowed on 10th August, 2017. Notably, the appellant was advised to withdraw the regular (second) Bail Application No.1361/2017. The learned Single Judge of the High Court by order dated 10th August, 2017 acceded to the prayer so made by the appellant. The order passed by the learned Single Judge of the High Court reads thus: “BAIL APPLN. 1361/2017 The petitioner has prayed for bail in connection with ECIR/18/DZII/2016/AD registered under Section 3 & 4 of Prevention of Money Laundering Act, 2002.

Simultaneously an application has been filed seeking interim bail on the ground of illness of the mother of the petitioner who has recently suffered a fracture in the neck. Mr. Mukul Rohatgi, learned Sr. Advocate seeks permission to withdraw the regular bail application on 18 the observation of the bench that the earlier bail application was rejected only on 5th of May, 2017. However he presses the interim bail application. Accordingly the regular bail application is dismissed as withdrawn. Crl.M.A.No.1293/2017 (application for interim bail) It has been submitted on behalf of the petitioner that he is the only son of his mother who has suffered a fall and has got a fracture in her neck. The sister of the petitioner is stationed abroad. The petitioner has a son who is of young age.

The petitioner has also drawn the attention of this Court to the medical report which indicates that a plaster has been put on the fracture but she has been suffering from acute pain. It has been further submitted that the charge sheet in the main case has been submitted and that the petitioner has remained in jail for more than seven months by now.

Opposing the aforesaid prayer for grant of interim bail, Mr. Mahajan, learned Sr. Standing Counsel submits that this is a case of serious fiscal impropriety of great magnitude and there is a possibility of the petitioner tampering with evidence if he comes out from the jail even for a short period. No definite reasons, however, have been assigned by Mr.Mahajan, for such a presumption that the petitioner would tamper with the evidence specially when charge sheet in the main case has already been submitted. Mr.Rohtagi, learned senior counsel has drawn the attention of this Court to the fact that whenever the petitioner was summoned to answer to the Queries, he had visited the office of the ED and in the past, had never tried to evade the process of investigation.

Taking into account the aforesaid facts, specially the period of incarceration of the petitioner, submission of the charge sheet in the main case and the illness of the mother of the petitioner, this Court is inclined to grant interim bail to the petitioner for a period of 3 weeks. Let the petitioner be released on interim bail for the period of 3 weeks, to be counted from the date of his release, on his furnishing a bond in the sum of Rs. 25,000/with two sureties of the like amount to the satisfaction of special court. However it is made clear that the petitioner shall not tamper with the evidence or commit any act which would be prejudicial to the prosecution side. Should anything of that kind be reported, this Court would consider the desirability of withdrawing/cancelling the interim bail.

The petitioner shall not, unnecessary, seek extension of the interim bail granted to him. It is also specified that the petitioner shall not leave the country under any circumstances whatsoever. Should the petitioner intend to go out of the territorial confines of NCR of Delhi, permission would be required to be taken from the Special Court. The petitioner shall also deposit his passport before the Special court while furnishing his bonds. Application is disposed of accordingly. Dasti.”

(emphasis supplied)

12. It is relevant to note that the aforementioned order for interim release of the appellant was confirmed by this Court on 12th August, 2017.

13. The appellant was thereafter advised to file the present appeals to assail the judgment and order dated 5th May, 2017 passed by the High Court of Delhi at New Delhi in Bail Application No.119 of 2017 and Criminal M.B. No.121 of 2017. The special leave petitions were filed on 18th August, 2017. During the pendency of these special leave petitions, the 20 appellant was advised to also file a writ petition under Article 32 of the Constitution of India to challenge the validity of the provisions of the Act of 2002. The same was filed on 23rd August, 2017, being Writ Petition (Civil) No.121 of 2017. The reliefs claimed in the said writ petition read thus:

“PRAER

(i) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the conditions/limitations contained in Section 45(1) of Prevention of Money Laundering Act, 2002 (Act 15 of 2003) to the extent that it imposes rigors/restrictions in the grant of bail in any offence punishable upto 7 years under the provisions of Prevention of Money Laundering Act, 2002 (Act 15 of 2003) as unreasonable, arbitrary and unconstitutional being violative of the fundamental rights of the Petitioner guaranteed and protected under Articles 14 and 21 of the Constitution of India;

(ii) In the alternative to prayer (i) above, issue a writ of mandamus or any other appropriate writ, order or direction reading down the scope and ambit of Section 45(1) of the Prevention of Money Laundering Act, 2002 (Act 15 of 2003), so that the rigors in grant of bail are not applicable in the case of the Petitioner, where the alleged scheduled offences in CC No. 41 of 2017 arising out of chargesheet No. 1 dated 24.06.2017 filed by the Crime Branch, New Delhi alleging commission of offences under Sections 420/188/109/120B/34 IPC and Section 12 of the Prevention of Corruption Act, 1988 (none of which were under Part A of the Schedule prior to the Prevention of Money Laundering (Amendment) Act, 2012 (Act 2 of 2013) and formed part of Part B of the Schedule;

(iii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring the continued incarceration of the Petitioner since 28.12.2016 in 21 ECIR/18/DZII/ 2016/AD dated 26.12.2016 under Section 3/4 of the Prevention of Money Laundering Act, 2002 is illegal, unconstitutional and in violation of the fundamental right of the Petitioner guaranteed and protected under Article 21 of the Constitution of India;

(iv) Issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus declaring that the offences under the Prevention of Money Laundering Act, 2002 (Act 15 of 2003) pursuant to the Prevention of Money Laundering (Amendment) Act, 2005 (Act 20 of 2005) which came into force w.e.f. 01.07.2005 are noncognizable offences and therefore, it is mandatory to comply with the provisions of Sections 155, 177(1) and 172 of the Code of Criminal Procedure, 1973 and declare that the law laid down by the Division Bench of the Hon’ble Delhi High Court in its judgment dated 27.4.2016 (reported in 2016 SCC Online Delhi 2493) and by the Hon’ble Gujarat High Court in Rakesh Manekchand Kothari vs. Union of India [Special Criminal Application (Habeas Corpus) No. 4247/2015] decided on 03.08.2015 holding that the offences under Section 3 of the Prevention of Money Laudnering Act, 2002 punishable under Section 4 thereof is a noncognizable offence is good law and the contrary view taken by the Hon’ble Bombay High Court in its judgment dated 14.12.2016 in Chhagan Chandrakant Bhujbal vs. Union of India & Ors. is bad in law;

(v) lay down guidelines for compliance by all Courts for grant of bail in proceedings arising out of and concerning the Prevention of Money Laundering Act, 2002 by expounding the scope of Section 439 of the Code of Criminal Procedure, 1973;

(vi) Issue rule nisi in terms of Prayers (i) to (v) above; and (vii) And/or pass any other or further orders which Your Lordships may deem fit and proper in the interest of justice.

14. The aforementioned writ petition was listed together with the appeals on 30th October, 2017. During oral arguments, however, the counsel appearing for the appellant, in all fairness, stated that the grounds urged in the said writ petition need not be considered at this stage and that the appeals preferred against the impugned judgment and order dated 5th May, 2017 be examined on the basis of the prevailing statutory provisions, including the rigors of Section 45 of the Act of 2002. In other words, the challenge to the impugned judgment will have to be considered as per the prevailing provisions and not with reference to the challenge regarding the validity thereof.

15. Reverting to the first contention of the appellant, that the reasons which weighed with the learned Single Judge of the High Court while directing interim release of the appellant, would apply proprio vigore for considering the regular bail. In that, the learned Single Judge vide order dated 10th August, 2017 noted the following circumstances:

i) Petitioner never tried to evade the investigation;

ii) The period of incarceration (7 1/2 months);

iii) Submission of chargesheet in the main case on 24/6/17;

iv) Illness of the mother of the Petitioner;

v) No definite reasons assigned by the Counsel for the Respondent to substantiate allegation that Petitioner would tamper with evidence especially when chargesheet in the main case has been submitted.

16. The argument though attractive at the first blush deserves to be rejected. In our opinion, the order dated 10th August, 2017 passed by the High Court directing interim release of the appellant was primarily on account of the illness of his mother. No more and no less. The other observations in the said order will have no bearing on the merits of the controversy and required to be reckoned whilst considering the prayer for grant of regular bail. For that, the appellant must succeed in overcoming the threshold of the rigors of Section 45 of the Act of 2002.

Indubitably, the appellant having withdrawn the regular (second) bail application, the consideration of prayer for grant of interim release could not have been taken forward. Besides, in the backdrop of the opinion recorded by the Coordinate Bench of the High Court (in its decision dated 5th May, 2017) whilst considering the application for grant of regular bail, which was after filing of the initial complaint CC 24 No.700/2017 (on 23rd February, 2017), was binding until reversed or a different view could be taken because of changed circumstances.

Suffice it to observe that indulgence shown to the appellant in terms of order dated 10th August, 2017 will be of no avail. In that, the facts such as the appellant never tried to evade the investigation or that he has suffered incarceration for over 71/2 months or that the chargesheet has been filed in the predicate offence registered under FIR No.205/2016 or the factum of illness of the mother of the appellant or the observation that no definite reason has been assigned by the respondents for substantiating the allegation that the appellant would tamper with the evidence, may become relevant only if the threshold stipulation envisaged under Section 45 of the Act of 2002 was to be fulfilled. The said provision reads thus:

“45. Offences to be cognizable and nonbailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.

(2) The limitation on granting of bail specified in subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

(emphasis supplied)

The sweep of Section 45 of the Act of 2002 is no more res intergra. In a recent decision of this Court in the case of Gautam Kundu Vs. Directorate of Enforcement (Prevention of MoneyLaundering Act), Government of 26 India, this Court has had an occasion to examine it in paragraphs 2830. It will be useful to advert to paragraphs 28 to 30 of this decision which read thus:

“28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with moneylaundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict.

29 . Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under PartA of the Schedule of the PMLA:

(i) That the prosecutor must be given an opportunity to oppose the application for bail; and

(ii) That the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail.

30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also 1 (2015) 16 SCC 1 27 Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in sofaras they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act.

Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.”

(emphasis supplied)

17. In paragraph 34, this Court reiterated as follows:

34. “xxx xxx xxx

We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm.

Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure.”

The decisions of this Court in the case of Subrata Chattoraj Vs. Union of India,2 Y.S. Jagan Mohan Reddy Vs. CBI 3, and Union of India Vs. Hassan Ali Khan 4 have been noticed in the aforesaid decision.

18. The consistent view taken by this Court is that economic offences having deeprooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the Act of 2002.

19. It is not necessary to multiply the authorities on the sweep of Section 45 of the Act of 2002 which, as aforementioned, is no more res integra. The decision in the 2 (2014) 8 SCC 768 3 (2013) 7 SCC 439 4 (2011) 10 SCC 235 29 case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Anr.,5 and State of Maharashtra Vs. Vishwanath Maranna Shetty,6 dealt with an analogous provision in the Maharashtra Control of Organised Crime Act, 1999. It has been expounded that the Court at the stage of considering the application for grant of bail, shall consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act.

The Court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail. In Ranjitsing Brahmajeetsing Sharma 5 (2005) 5 SCC 294 6 (2012) 10 SCC 561 30 (supra), in paragraphs 44 to 46 of the said decision, this Court observed thus:

“44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial.

Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

However, while dealing with a special statute like MCOCA having regard to the provisions contained in Subsection (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting  or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”

20. Reverting to the decision in the case of Manoranjana Sinh Vs. Central Bureau of Investigation we hold that the same is on the facts of that case. Even in the said decision, the Court has noted that the grant or denial of bail is regulated to a large extent by the facts and circumstances of each case. In the case of Sanjay Chandra Vs. Central Bureau of Investigation, the Court was not called upon to consider the efficacy of Section 45 of the Act of 2002 which is a special enactment.

21. Keeping in mind the dictum in the aforesaid decisions, we find no difficulty in upholding the opinion recorded by the Sessions Court as well as the High Court in this regard. In our opinion, both the Courts have carefully analysed the allegations and the materials on record indicating the complicity of the appellant in the commission of crime punishable under Section 3/4 of the Act of 2002. The Courts have maintained the delicate balance between the judgment of acquittal and conviction and order granting bail before commencement of trial. The material on record does not commend us to take a contrary view.

22. Realizing this position, the learned counsel appearing for the appellant would contend that even if the allegations against the appellant are taken at its face value, the incriminating material recovered from the appellant or referred to in the complaint, by no stretch of imagination, would take the colour of proceeds of crime. In fact, there is no allegation in the chargesheet filed in the scheduled offence case or in the prosecution complaint that the unaccounted cash deposited by the appellant is as a result of criminal activity. Absent this basic ingredient, the property derived or obtained by the appellant would not become proceeds of crime. To examine this contention, it would be useful to advert to Sections 3 and 4 of the Act of 2002.

The same read thus:

“3. Offence of moneylaundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as 33 untainted property shall be guilty of offence of moneylaundering.

4. Punishment for moneylaundering. Whoever commits the offence of moneylaundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in moneylaundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.”

23. As the fulcrum of Section 3 quoted above, is expression ‘proceeds of crime’, the dictionary clause in the form of Section 2(1)(u) is of some relevance.

The same reads thus:

“2(1)(u) ‘proceeds of crime’ means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country;”

It will be useful to advert to the meaning of expression “property” as predicated in Section 2(1)(v). The same reads thus: “2(1)(v) “property” means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and 34 instruments evidencing title to, or interest in, such property or assets, wherever located; The expression ‘scheduled offence’ has been defined in Section 2(1)(y) of the Act of 2002. The same reads thus: “2(1)(y) ‘scheduled offence’ means

( i) the offences specified under Part A of the Schedule; or

(ii) the offences s