11/8/2020 Email

Email . ssplo.pon@nic.in

legal opinion whether mlas are public servants under pc act

From : Bharatha Chakravarthy <pp-highcourt.py@gov.in> Sat, Nov 07, 2020 04:00 PM

Subject: legal opinion whether mlas are public servants under pc act ~ 1 attachment
To : Senior Supt. of Police Law and Order,Police Dept. Pondicherry
<ssplo.pon@nic.in>

Dear Madam ,
Kindly find herewith attached the opinion sought for.
Regards,

D.BHARATHACHAKRAVARTHY
Public Prosecutor for Puducherry at the
Madras High Court
Office of the Public Prosecutor for Puducherry,
High Court, Chennai - 600 104
Ph:044-25341072; 044-25353331
Mobile: 09381034762

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-l£j legal opinion mla public servant.pdf

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 D. Bharatha Chakravarthy
PUBLIC PROSECUTOR
(For Puducherry at the Madras High Court)

Office of the Government Pleader-cum- Email : pp-highcourt.py@gov.in

Public Prosecutor for Puducherry Mobile: 9381034762
High Court Buildings, Chennai - 600104 Ph.044-23353331;044-25341072

Dt. 07/11/2020
To .

The Senior Superintendent of Police

Puducherry

Madam,

Sub: Legal Opinion

Ref: The telephonic queries raised on 06/11/2020 ... Reg.

Question No. 1 :

1. Whether a Member of the Legislative Assembly is a public servant for the

purposes of the Offenses under the Prevention of Corruption Act. 1988?

Answer:

1. YES. The 1988 act contains its own definition of the term "public servant''
under Section 2(c) and as per Section 2 (c) (viii) any person who holds an
office by virtue of which he is authorized or required to perform any public
duty is a Public Servant and Section 2 (b) defines 'public duty' means a duty
in discharge of which the state, the public or the community at large has an
interest. Considering this a Constitution Bench of the Hon'ble Supreme
Court of India, in P.V. Narasimha Rao -Vs- State ( 1998 4 SCC 626) has held
that MPs and MLAs are public servants and can be prosecuted for the
offenses under the Act. The said judgment has been consistently followed
and the proposition is reiterated in Abay Singh Chautala -Vs- CBI in 2011 7
sec 141.
Question No. 2 :

If so, whether sanction has to be obtained under Section 19, against the
MLAs, and from whom?

Answer:

It has been held in P.V. Narasimha Rao, supra, thatthere is no authority who
can remove them from office and therefore, no sanction under Section 19 is
required, however considering the scheme of provisions, in order to avoid
misuse, the Supreme Court has directed taking the permission of the Speaker
of the concerned Legislative Assembly, before filing of the charge sheet. This
was read by the Hon'ble High Court of Kerala, in State of Kerala -Vs- K
Karunakaran ( 2003 SCCONLINE KER 359), by reading the requirement in
accordance with the further dicta of the Hon'ble Supreme Court of India, in
Parakash Singh Badal, and R.S. Nayak cases, that it will be necessary, if the
accused is still the MLA of the same Assembly, the office of which he abused.

Therefore, If a particular MLA of the current assembly has abused his current
office and that the charge sheet is to be filed and that as on date of the filing
of the charge sheet, if he is still the MLA, then permission of the Speaker is
to be taken.

Yours faithfully,
..P>-/'-~.
(D. Bharatha Chakravarthy)