TMI Blog2009 (9) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... 1988. 3. The brief factual matrix of the case is as under : On source information the Central Bureau of Investigation, Goa registered a preliminary enquiry being PE 2(A)/2002/CBI/ACB against the respondent no. 1 and others. The respondent no. 1 was the then Commissioner of Customs and Central Excise, Panaji. It was alleged that respondent no. 1 along with others purchased 48 ready built flats for Customs Department from the respective firms at an exorbitant price of Rs. 3,55,69,150/- though the actual market value was much less than the price paid. It was further alleged that undue favour of respondent no. 1 caused huge loss of Rs. 1.04 crores to the department. Shri Ram Avtar Yadav, Inspector CBI/ACB/Goa was conducting the enquiry into said allegations. 4. The respondent No. 2 was the Inspector of Central Excise, Goa. It was alleged that on 24-9-2002, the respondent no. 2 made a request on telephone to Shri Ram Avtar Yadav, Inspector to meet him in connection with some personal work. On the next day i.e. 25-9-2002, the respondent no. 2 met Shri Ram Avtar Yadav, Inspector and during the course of meeting he made a request on behalf of the respondent no. 1 to close the case an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion does not provide for any such previous sanction and the requirement of previous sanction is only in respect of offences punishable under Sections 7, 10, 11, 13 and 15 of the Act. 9. M/s. Krishnan Venugopal, learned senior counsel and Santosh Kumar, learned counsel for the respondents supported the reasoning and conclusion of the High Court that previous sanction for taking cognizance against a public servant would be equally necessary in respect of the offence punishable under Section 12 of the Act also. 10. In order to appreciate the submissions that were made before us it may be necessary to notice the relevant provisions of the Act. Section 12 of the Act which provides for punishment for abetment of offences defined in Section 7 or 11 reads as under : Section 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. 11. Section 19 of the Act which deals with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. 12. In the instant case, we are not concerned with the question as to whether the respondents have committed any offence punishable under Section 120B of the Indian Penal Code read with Section 12 of the Act. We have to proceed on the basis of the allegations made by the appellant against the respondents without going into the truth or otherwise of the allegations so made in the charge sheet. The issue that arises for consideration is whether the learned Special Judge as well as the High Court have committed any error in refusing to take cognizance of the offence punishable under Section 12 of the Act alleged to have been committed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgment because such course would be subversive of constitutional harmony [See : Union of India Anr. v. Deokinandan Aggarwal]. 16. In A.R. Antulay v. Ramdas Sriniwas Nayak, it so happened that a private complaint was made by the respondent therein against the appellant after the requisite sanction under Section 6 of Prevention of Corruption Act, 1947 was given by the Government. The Court of Special Judge took cognizance of the alleged offences under Section 8(1) of the Criminal Law Amendment Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the Judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so . (See: Frankfurter, Some Reflections on the Reading of Statutes in Essays on Jurisprudence, Columbia Law Review, p.51.) It was further observed : Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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