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Thursday, April 16, 2015

Whether sanction under Section 197 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') is required to initiate criminal proceedings in respect of offences under Sections 420, 468, 477A, 120B read with 109 of the Indian Penal Code (45 of 1860) - No -That question is no more res integra -The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty" -The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding -The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue- The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only. -2015 S.C. MSKLAWREPORTS




while they were working as  Sub-Registrars  in  various
offices in the State of Andhra Pradesh, they conspired  with  stamp  vendors
and document writers and other staff to gain monetary benefit  and  resorted
to manipulation of registers and got the registration of the documents  with
old value of the properties, resulting in wrongful gain  to  themselves  and
loss to the Government, and thereby cheated the public and the Government.

The District Registrar, Vijayawada lodged a complaint with the Inspector  of
Police, CBCID Vijayawada on 07.07.1999.
On the basis of the complaint, F.I.R. No.  35/1999  was  registered  by  the
appellant,  and  after  investigation,  report  under  Section  173(2)  CrPC
against 41 persons including the respondents herein,  was  submitted  before
the  III  Additional  Chief   Metropolitan   Magistrate,   Vijayawada.  

The respondents raised the objection that there was no  sanction  under  Section
197 CrPC and hence the proceedings could not be initiated.

Learned Magistrate on 03.07.2007 passed an order holding that:

"Whether the sanction is required under Section 197  Cr.PC.  or  not  to  be
considered during the trial and it is  the  burden  on  the  complainant  to
prove that the accused acted beyond in discharge of  their  official  duties
and there is no nexus between the acts committed and their  official  duties
and at this stage the question that the accused acted  within  their  duties
cannot be decided."

Aggrieved, respondents moved the High Court under Section 482  CrPC  leading
to the impugned order whereby the criminal proceedings were quashed  on  the
sole ground that there was no sanction under Section  197  CrPC,  and  hence
the appeals.

No doubt, while the respondents indulged in the  alleged  criminal  conduct,
they had been working as public servants. 
The question is not  whether  they
were in service or on duty or not but  whether  the  alleged  offences  have
been committed by them "while acting or purporting to act  in  discharge  of
their official duty"

That question is no  more  res  integra

"5. The question is when the public servant is  alleged  to  have  committed
the offence of fabrication of record  or  misappropriation  of  public  fund
etc. can he be said to have acted in discharge of his  official  duties.  It
is not the official duty of  the  public  servant  to  fabricate  the  false
records and misappropriate the public funds etc. in  furtherance  of  or  in
the discharge of his official duties. The  official  capacity  only  enables
him to fabricate the record or misappropriate the public fund etc.  It  does
not mean that it is integrally connected  or  inseparably  interlinked  with
the crime committed in the course of the same transaction, as  was  believed
by the learned Judge. Under these circumstances, we are of the opinion  that
the view expressed by the High Court as well as by the trial  court  on  the
question of sanction is clearly illegal and cannot be sustained."

"38. The question relating to the need of sanction under Section 197 of  the
Code is not necessarily to be considered as soon as the complaint is  lodged
and on the allegations contained therein. This question  may  arise  at  any
stage of the proceeding. The question whether sanction is necessary  or  not
may have to be determined from stage to stage."

"74. ... Public servants are treated as a special class of persons  enjoying
the said protection so that they can perform their duties without  fear  and
favour and without threats  of  malicious  prosecution.  However,  the  said
protection against  malicious  prosecution  which  was  extended  in  public
interest cannot become a shield to  protect  [pic]corrupt  officials.  These
provisions being exceptions to the equality  provision  of  Article  14  are
analogous  to  the  provisions  of  protective  discrimination   and   these
protections must be construed very  narrowly.  These  procedural  provisions
relating to sanction must be construed in such a manner as  to  advance  the
causes of honesty and justice and good governance as opposed  to  escalation
of corruption."


The alleged indulgence of the officers in cheating, fabrication  of  records
or misappropriation cannot be said to be  in  discharge  of  their  official
duty. Their official duty is not to fabricate records or permit  evasion  of
payment of duty and cause loss  to  the  Revenue.  Unfortunately,  the  High
Court missed these crucial aspects. The  learned  Magistrate  has  correctly
taken the view  that  if  at  all  the  said  view  of  sanction  is  to  be
considered, it could be done at the stage of trial only.

Resultantly, the impugned orders are set aside.  Appeals  are  allowed.-2015 S.C. MSKLAWREPORTS

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