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Saturday, July 2, 2016

whether the High Court has correctly accepted the submission advanced on behalf of the first respondent, who was convicted for offences punishable under Section 409/467/468/471 of the Indian Penal Code, 1860 (for short, ‘IPC’) and had been awarded sentence for each of the offences with the stipulation that they would run concurrently, that he being an employee of the appellant Corporation is a public servant and the trial had commenced without obtaining sanction under Section 197 of the Code of Criminal Procedure, 1973 (CrPC) and hence, the trial in entirety was invalid and as a result the conviction and sentence deserved to be set aside. = whether Section 197 CrPC was applicable for prosecuting officers of the public sector undertakings or the Government companies which can be treated as State within the meaning of Article 12 of the Constitution of India. The Court referred to Section 197 CrPC, noted the submissions and eventually held that the protection by way of sanction under Section 197 CrPC is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government.= It has come to our notice on many an occasion that the relevant precedents are not cited by the Corporations and the government undertakings before the High Court. We should, as advised at present, only say that a concerted effort should be made in that regard so that a stitch in time can save nine.- In view of the aforesaid analysis, the irresistible conclusion is that the respondents are not entitled to have the protective umbrella of Section 197 CrPC and, therefore, the High Court has erred in setting aside the conviction and sentence on the ground that the trial is vitiated in the absence of sanction. Consequently, we allow the appeal and set aside the judgment and order passed by the High Court and remit the matter to the High Court to decide the revision petition in accordance with law.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  159  OF 2016
                    (@ S.L.P.(Criminal) No. 3906 of 2012)




Punjab State Warehousing Corp.          ...  Appellant

                                   Versus

Bhushan Chander & Anr.                  ... Respondents





                               J U D G M E N T


Dipak Misra, J.


      The singular question that has emanated in  this  appeal,  by  special
leave, is whether the High  Court  has  correctly  accepted  the  submission
advanced on behalf of the first respondent, who was convicted  for  offences
punishable under Section 409/467/468/471 of  the  Indian  Penal  Code,  1860
(for short, ‘IPC’) and had been awarded sentence for each  of  the  offences
with the stipulation that they would run  concurrently,  that  he  being  an
employee of the appellant Corporation is a public servant and the trial  had
commenced without obtaining sanction  under  Section  197  of  the  Code  of
Criminal Procedure, 1973  (CrPC)  and  hence,  the  trial  in  entirety  was
invalid and as a result the conviction  and  sentence  deserved  to  be  set
aside.
2.    As far as the factual narration is  concerned,  suffice  it  to  state
that the Managing Director of  the  Corporation  had  written  a  letter  on
28.6.1989 to the concerned police authority to register a case  against  the
first respondent for offences punishable under Sections 409/467/468 and  471
of  the  IPC  or  any  other   appropriate   provision   of   law.    During
investigation, the investigating agency  found  that  the  accused  who  was
working as a Godown Assistant in  the  Corporation  had  misappropriated  11
gunny bales value of which was Rs.38,841/-; that he had  tampered  with  the
record of the department; and accordingly the police authorities  filed  the
charge-sheet for the  aforesaid  offences  before  the  court  of  competent
Judicial Magistrate.  The  learned  Magistrate  on  the  basis  of  evidence
brought on record, found that the prosecution had been able  to  bring  home
the guilt against the  accused  and  accordingly  sentenced  him  to  suffer
rigorous imprisonment for three years under Section 467 and 409 IPC and  two
years under Section 468/471 IPC with separate default clauses. The  judgment
of conviction and order of  sentence  was  assailed  in  appeal  before  the
learned Session Judge, Firozpur and the matter  was  finally  heard  by  the
learned Additional Session Judge, who appreciating the evidence  on  record,
concurred with the conviction but  modified  the  sentence  of  three  years
imposed under Section 409 and 467 IPC to two years.
3.    Being dissatisfied, the first respondent preferred  Criminal  Revision
No. 359/2001 in the High Court of Punjab and Haryana at Chandigarh.   Before
the revisional court, the only contention that was raised pertained to  non-
obtaining of sanction under Section 197 CrPC.   It  was  argued  before  the
learned Single Judge that in view of the decisions in State  of  Maharashtra
v. Dr. Budhikota Subbarao[1], Rakesh Kumar Mishra  v.  State  of  Bihar  and
others[2], Sankaran Moitra v. Sadhna Das and another[3],  Om  Kumar  Dhankar
v. State of Haryana[4], the requisite sanction  having  not  been  obtained,
the trial was vitiated.  On behalf of the Corporation as well as  the  State
of Punjab, it was argued that the sanction under Section 197  CrPC  was  not
necessary to prosecute the first respondent and  to  substantiate  the  said
stand, reliance was  placed  on  Dr.  Lakshmansingh  Himatsingh  Vaghela  v.
Naresh Kumar Chadrrashanker Jah[5], N. Bhargavan Pillai (dead) by  Lrs.  and
another v. State of Kerala[6],   State  of  U.P.  v.  Paras  Nath  Singh[7],
Raghunath Anant Govilkar v. State of Maharashtra[8]  and  Choudhury  Parveen
Sultana v. State of West Bengal[9].
4.    The learned Single Judge referred to the charges framed under  Section
409 and 467 IPC.  He also referred  to  the  authorities  in  Prakash  Singh
Badal v. State of Punjab[10], Nirmal Singh Kahlon v.  State  of  Punjab[11],
Om Kumar Dhankar (supra) and Bakshish Singh  Brar  v.  Gurmel  Kaur[12]  and
analyzing Section 197 CrPC observed that the  said  provision  is  meant  to
protect responsible public servants against  the  institution  of  vexatious
criminal proceedings for offences alleged to have been  committed  by  them.
The learned Single Judge referred to P. Arulswami v.  State  of  Madras[13],
Matajog Dube v.  H.C.  Bahri[14],  P.K.  Pradhan  v.  State  of  Sikkim[15],
reproduced a passage from B. Saha v. M.S. Kochar[16], and came  to  hold  as
follows:-
“So far as the commission of offence in this case  is  concerned,  the  very
allegation would clearly reveal that it is not a case where the  allegations
are in any other capacity than a public  servant.   The  allegation  against
the petitioner is that while being a public  servant,  he  had  committed  a
criminal breach of trust.  It is only in the  performance  of  the  official
duty that the  petitioner  is  alleged  to  have  been  found  with  certain
deficiencies for which allegation of criminal breach of trust  as  well  has
been made against him.  Certainly the facts in this  case  are  inextricably
mingled with the official duty of the petitioner to be considered  severable
to call for dispensing with the requirement of sanction”.

5.    After so stating, the revisional court distinguished the  decision  in
Paras Nath Singh (supra)  which  was  relied  upon  by  the  prosecution  by
stating thus:-
“The aggrieved  person  in  the  said  case  has  faced  trial  for  alleged
commission of the offences punishable under Section 409, 420,  461  and  468
IPC.  The Supreme Court in  this  case  has  drawn  difference  between  the
official duty and doing something by public servant in  the  course  of  his
service.  It is observed that the section does  not  extend  its  protective
cover to act or omission done by a public servant in service, but  restricts
its scope of operation to only those acts or omissions, which are done by  a
public servant in discharge of official duty.  Even this observation of  the
Hon’ble Supreme Court would fully apply to the facts of  the  present  case.
Here, the petitioner is alleged to have committed this offence not  only  as
a public servant but is stated to have done so in discharge of his  official
duty.   In discharge of his official duty, the petitioner  was  required  to
protect stock, which he failed to do so and so he is asked  to  account  for
the same”.

6.    The eventual conclusion recorded by the learned  Single  Judge  is  to
the following effect:-
“Under normal circumstances, the offence under Sections 467/468/471 IPC  may
be of such a nature that requirement of  obtaining  sanction  under  Section
197 CrPC may not be called for.  The offences in this case have been  inter-
connected with  the  main  offence  alleged  against  the  petitioner  under
Section 409 IPC and it would clearly indicate that these offences could  not
be separately treated or dealt  with.   Requirement  of  obtaining  sanction
would be needed for an offence under Section 409 IPC and the  same  may  not
be separated from the remaining offences”.

7.    After so stating, the learned Single Judge ruled that the  Corporation
is a fully government-owned  and  financed  by  the  State  Government  and,
therefore, he is a public servant as per the definition  of  Section  21  of
IPC and, therefore, his employment in the Corporation would confer  him  the
status of public servant for which sanction is  necessary.   The  revisional
court has not adverted to any of the aspects touching  merits  of  the  case
and, therefore, we refrain from entering into the said arena.
8.    Section 197(1) and  (2)  CrPC  which  are  relevant  for  the  present
purpose are reproduced below:-
“197. Prosecution of Judges and public servants.—(1) When any person who  is
or was a Judge or Magistrate or a public  servant  not  removable  from  his
office save by or with the sanction of the  Government  is  accused  of  any
offence alleged to have been committed by him while acting or purporting  to
act in the discharge of his official duty, no court  shall  take  cognizance
of such  offence  except  with  the  previous  sanction  save  as  otherwise
provided in the Lokpal and Lokayuktas Act, 2013—

(a) in the case of a person who is employed or, as the case may be,  was  at
the time of commission of the alleged offence employed, in  connection  with
the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be,  was  at
the time of commission of the alleged offence employed, in  connection  with
the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a  person  referred
to in clause (b) during the period while a proclamation issued under  clause
(1) of Article 356 of the Constitution was in force in a State,  clause  (b)
will apply as if for the expression ‘State  Government’  occurring  therein,
the expression ‘Central Government’ were substituted.

Explanation.—For the removal  of  doubts  it  is  hereby  declared  that  no
sanction shall be required in case  of  a  public  servant  accused  of  any
offence alleged to have been committed under Section 166-A,  Section  166-B,
Section 354, Section 354-A, Section 354-B,  Section  354-C,  Section  354-D,
Section 370,  Section  375,  Section  376,  Section  376-A,  Section  376-C,
Section 376-D or Section 509 of the Indian Penal Code (45 of 1860).

(2)   No Court shall take cognizance of any offence  alleged  to  have  been
committed by any member of the Armed Forces of the  Union  while  acting  or
purporting to act in the discharge of his official  duty,  except  with  the
previous sanction of the Central Government.”

9.    In Matajog Dube (supra), certain complaints were alleged  against  the
authorized  officials  on  the  ground  that  the  officials  had  committed
offences  punishable  under  Sections  323,  341,  342  and  109  IPC.   The
officials were arrayed as accused persons who were authorized to search  two
premises in question.  The trial Magistrate discharged the  accused  persons
for want of sanction under Section 197 CrPC.  Similar order  was  passed  by
another trial Magistrate.  Both the orders were concurred with by  the  High
Court.  Be it noted two cases had arisen as two complaints were  filed.   It
was contended before  this  Court  that  the  act  of  criminal  assault  or
wrongful confinement can never be regarded  as  act  done  while  acting  or
purporting to act in the  discharge  of  official  duty  and  that  duty  is
clearly defined in the statute.  The  Constitution  Bench  referred  to  two
decisions  of  the  Federal  Court  and  the  decisions  of  this  Court  in
Shreekantiah Ramayya Munipalli v. State of Bombay[17]  and  Amrik  Singh  v.
State of Pepsu[18] and analyzing the earlier authorities opined that:-
“The result of foregoing discussion is this:  There  must  be  a  reasonable
connection between the act and the discharge of official duty; the act  must
bear such relation to the duty that the accused could lay a  reasonable  but
not a pretended or fanciful claim, that he did  it  in  the  course  of  the
performance of his duty”.

10.   Thereafter, the  Court  adverted  to  the  determination  of  need  of
sanction and the relevant  stage.   We  are  not  concerned  with  the  said
aspects in the present case.
11.    In  Arulswami  (supra),  the  President  of  a  Panchayat  Board  was
convicted under Section 409 IPC by the High Court which had  overturned  the
decision of the lower court.  It was argued before the High Court  that  the
prosecution  was  not  maintainable  for  want  of  sanction  by  the  State
Government under Section 106 of the Madras Village Panchayats  Act   (Madras
Act X of 1950).  The High Court held that no sanction of the Government  was
necessary as the appellant had ceased to hold the office of  the  President,
when the prosecution was launched and  further  that  the  sanction  of  the
Collector was sufficient in law.  That apart, this Court posed the  question
whether the sanction of the Government under Section 106 of the  Madras  Act
was necessary for the prosecution of the appellant  for  the  offence  under
Section 409 IPC.  To appreciate the contention raised,  the  Court  referred
to Section 197 CrPC.  The three-Judge Bench referred  to  the  decisions  in
Hori Ram Singh v. Emperor[19] and H.H.B. Gill v. The King[20].   The  three-
Judge Bench quoted the observations of Lord  Simonds  made  in  H.H.B.  Gill
(supra) in approving the statement of law made in Hori Ram  Singh   (supra).
The Court also took note of the  fact  that  the  decision  in  H.H.B.  Gill
(supra) had been approved in Albert West Meads v.  The  King[21],  Phanindra
Chandra v. The King[22] and R. W. Mathams v. State of  West  Bengal[23]  and
eventually held:-
“It is not therefore every  offence  committed  by  a  public  servant  that
requires sanction for prosecution under S. 197(1) of the Criminal  Procedure
Code; nor even every act done by him while he is  actually  engaged  in  the
performance of his  official  duties;  but  if  the  act  complained  of  is
directly concerned with his official  duties  so  that,  if  questioned,  it
could be claimed to have been done by virtue of the  office,  then  sanction
would be necessary.  It is the quality of the act that is important  and  if
it falls within the scope and range of his official  duties  the  protection
contemplated by S. 197 of the Criminal Procedure  Code  will  be  attracted.
An office may be entirely unconnected with the official duty as such  or  it
may be committed within the  scope  of  the  official  duty.   Where  it  is
unconnected with the official duty there can be no protection”.
12.   The Court while arriving at the said conclusion also  placed  reliance
on Om Prakash Gupta v. State of U.P.[24] and ultimately came  to  hold  that
the sanction of the Government is  not  necessary  for  prosecution  of  the
accused under Section 409 IPC.
13.   The aforesaid two authorities  make  it  clear  that  no  sanction  is
needed to launch the prosecution for the offence  punishable  under  Section
409 IPC.  As we notice from the impugned judgment, the learned Single  Judge
has been swayed away by what has been stated in B.  Saha  (supra).   In  the
said  case,  the  appellants  had  sought  discharge  on  the  ground   that
cognizance of the complaint had been taken without obtaining sanction  under
Section 197 CrPC and Section 155 of the Customs Act, 1962.   The  Magistrate
had accepted the objection relying on the decision in  Shreekantiah  Ramayya
Munipalli (supra).  The said order was challenged by the complainant  before
the High Court and the learned  Single  Judge,  after  elaborate  discussion
opined that no sanction was required for the  prosecution  of  the  accused-
appellants for the offence under Sections 120-B/409 IPC  because  they  were
certainly not acting in the discharge of their official  duties,  when  they
misappropriated the goods.  The three-Judge Bench analyzing  the  ambit  and
scope of Section 197 CrPC opined that the  words  “any  offence  alleged  to
have been committed by  him  while  acting  or  purporting  to  act  in  the
discharge of his official duty” employed in Section 197(1) of the Code,  are
capable of a narrow as well as a wide interpretation.   If  the  said  words
are  construed  too  narrowly,  the  section  will  be  rendered  altogether
sterile, for, “it is no part of an official duty to commit an  offence,  and
never can be”. The Court proceeded to observe that in the wider  sense,  the
said words  will  take  under  their  umbrella  every  act  constituting  an
offence, committed in the course  of  the  same  transaction  in  which  the
official duty is performed  or  purports  to  be  performed  and  the  right
approach to the import of these  words  lies  between  these  two  extremes.
While on the one hand, it  is  not  every  offence  committed  by  a  public
servant while engaged in the performance of  his  official  duty,  which  is
entitled to the  protection  of  Section  197(1),  an  act  constituting  an
offence, directly and reasonably  connected  with  his  official  duty  will
require sanction for  prosecution  under  the  said  provision.   The  Court
referred to the observations of Ramaswami,  J.,  in  Baijnath  v.  State  of
M.P.[25], which is to the following effect:-
“it is the quality of the act that is important, and if it falls within  the
scope and range of his  official  duties,  the  protection  contemplated  by
Section 197 of the Criminal Procedure Code will be attracted”.

      After so stating, the Court  held  that  the  sine  qua  non  for  the
applicability of this section is that the offence  charged,  be  it  one  of
commission or omission, must be one which has been committed by  the  public
servant either in his official capacity or under colour of the  office  held
by him.
14.   The Court  thereafter  observed  that  whether  an  offence  had  been
committed in the course of official duty or not, color of office  cannot  be
answered hypothetically and would depend on the facts  of  each  case.   The
Court  referred  to  the  decisions  in  Hori  Ram  Singh  (supra)  and  the
observations made in Gill’s  case  for  the  purpose  of  appreciating  what
should be  the  broad  test.   The  Court  reproduced  a  passage  from  the
Constitution Bench in Matajog Dube (supra)  which  states  about  reasonable
connection between the act and the discharge of official duty, and that  the
act must bear such relation to  the  duty  that  the  accused  could  lay  a
reasonable but not a pretended or fanciful claim, that  he  did  it  in  the
course of the performance of  his  duty.   We  have  ingeminated  the  same,
though we had earlier reproduced the same.
15.   After so stating, the Court adverted to the facts.  The Court  noticed
that the fact complained of is dishonest misappropriation for conversion  of
the goods by the appellants  which  they  had  seized,  and  as  such,  were
holding in trust to be dealt with in accordance with law.  The Court  opined
there can be no dispute that the seizure of  the  goods  by  the  appellants
being entrusted with the goods or dominion over them was  an  act  committed
by them while acting in the discharge of their official duty,  but  the  act
complained of subsequent dishonest misappropriation or conversion  of  those
goods by the appellants, which  is  the  second  necessary  element  of  the
offence of criminal breach of trust under Section 409  IPC,  and  hence,  it
could not be said that the act was committed in the  course  of  performance
of their official duty.  It  was  observed  by  the  Court  that  there  was
nothing in the nature or quality of the act complained of which attaches  to
or partakes the official character of the appellants who  allegedly  did  it
nor could the alleged act of misappropriation or conversion reasonably  said
to be imbued with the color of the  office  held  by  the  appellants.   The
Court referred to the test in Hori Ram Singh (supra) and  thereafter  stated
thus:-
“This, however, should not be understood as  an  invariable  proposition  of
law. The question, as already explained, depends on the facts of each  case.
Cases are conceivable where on their special facts it can be said  that  the
act of criminal misappropriation or conversion complained of is  inseparably
intertwined with the performance of the official duty  of  the  accused  and
therefore, sanction under Section 197(1) of the Code of  Criminal  Procedure
for prosecution of the accused for an  offence  under  Section  409,  Indian
Penal Code was necessary”.

16.   The three-Judge  Bench  distinguished  the  decision  in  Shreekantiah
Ramayya Munipalli (supra)  and  also  Amrik  Singh  (supra).   The  ultimate
conclusion of the Court reads thus:-
“There are several decisions of this Court, such as,  Om  Prakash  Gupta  v.
State of U.P.; Baijnath v. State of  M.P.  (supra)  and  Harihar  Prasad  v.
State of Bihar[26], wherein it has been held  that  sanction  under  Section
197, Criminal Procedure Code for prosecution for an  offence  under  Section
409, Indian Penal Code was not necessary. In Om Prakash Gupta  case  (supra)
it was held that a public servant committing criminal breach of  trust  does
not normally act in his capacity as a public servant.  Since  this  rule  is
pot absolute, the question being dependent on the facts of each case, we  do
not think it necessary to burden this judgment with a survey  of  all  those
cases”.

      On the aforesaid analysis, the appeal was dismissed.   We will  advert
to the appreciation of the ratio of the aforesaid decision  by  the  learned
Single Judge after we take note of certain other authorities.
17.   In State of Maharashtra  v.  Dr.  Budhilota  Subbarao[27],  the  Court
referred to the authority in B. Saha (supra), Arulswami (supra)  and  stated
that the concept of sanction has been widened  by  extending  protection  to
even those acts or  omissions  which  are  done  in  purported  exercise  of
official duty and that is under the colour of office.   Proceeding  further,
the Court stated that official duty implies that the act  or  omission  must
have been done by the public servant in course of his service and  such  act
or omission must have been performed as a part of duty  which  further  must
have been official in nature.    As  has  been  stated  by  the  Court,  the
provision has to be construed strictly while determining  its  applicability
to any act or omission in course of service and  its  operation  has  to  be
limited to those duties which are discharged in course  of  duty.    It  has
been held that:-
“But once it is established that act or omission  was  done  by  the  public
servant while discharging his duty then the  scope  of  its  being  official
should be construed so as to advance the objective of the section in  favour
of the public servant. Otherwise the entire purpose of affording  protection
to a public servant without sanction shall stand frustrated. For instance  a
police officer in discharge of duty may have to use force which  may  be  an
offence for the prosecution of which the sanction may be necessary”.

18.   The facts in the said case are absolutely different but we  have  only
referred to the said authority to appreciate  that  it  has  reiterated  the
principle that an act must bear a relation to  the  duty  that  the  accused
could lay a reasonable claim that the act has been in exercise  of  official
duty or duty that has been done has the colour of office.
19.   In Shambhoo Nath Misra v. State of U.P.[28], a private  complaint  was
filed by the  appellant  therein  against  the  second  respondent  for  the
offences punishable under Sections 409, 420, 465, 468, 477-A  and  109  IPC.
The learned Magistrate had dismissed the  complaint  holding  that  sanction
under Section 197 CrPC was not obtained.  The High Court accepted  the  view
of the learned Magistrate.  Be it stated, the learned Judge had relied  upon
the judgment of Hori Ram Singh (supra), B. Saha  (supra)  and  Gill’s  case.
The Court observed  that  the  requirement  of  the  sanction  by  competent
authority or appropriate Government is an assurance and  protection  to  the
honest officer who does  his  official  duty  to  further  public  interest.
However, performance of official  duty  under  colour  of  public  authority
cannot be camouflaged to commit crime. The  Court  further  stated  that  to
proceed further in the trial or the enquiry, as the case may be, it  has  to
apply its mind and record a finding that the crime  and  the  official  duty
are not integrally connected.
20.   Thereafter, the Court held:-
“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”.

      Being of this view, the Court allowed the appeal  and  set  aside  the
order of the Magistrate and directed restoration of the complaint.
21.   In State of Kerala v. V. Padmanabhan Nair[29]  it has been  held  that
when no sanction under Section 197 is necessary  for  taking  cognizance  in
respect of the offences under Section 406 and Section 409 read with  Section
120-B IPC.  Similar principle has been laid down in State of  H.P.  v.  M.P.
Gupta[30]. In Parkash Singh  Badal  and  another  v.  State  of  Punjab  and
others[31] it has been ruled that the offence of cheating under Section  420
or for that matter offences relatable to Sections 467, 468,  471  and  120-B
can by no stretch of imagination by their very nature be regarded as  having
been committed by any public servant while acting or purporting  to  act  in
discharge of official duty. In such cases, official status only provides  an
opportunity for commission of  the  offence.   Similar  principle  has  been
reiterated in  Choudhury  Parveen  Sultana  v.  State  of  West  Bengal  and
another[32] wherein the Court referred to the authority  in  Bhagwan  Prasad
Srivastava v. N.P. Mishra[33] and ruled thus:-
“12. It was also observed in Bhagwan Prasad Srivastava (supra) that  Section
197 has been designed to facilitate effective and unhampered performance  of
their official duty by public servants by providing for  scrutiny  into  the
allegations of commission of offence by them by their  superior  authorities
and prior sanction for their prosecution was a condition  precedent  to  the
taking of cognizance of the  cases  against  them  by  the  courts.  It  was
finally observed that the question whether a particular act  is  done  by  a
public servant in the discharge of his official duties is substantially  one
of the facts to be determined in the circumstances of each case.”

22.   A survey of the precedents makes it absolutely clear  that  there  has
to be reasonable connection between  the  omission  or  commission  and  the
discharge of official duty or the act committed was under the colour of  the
office held by the official.  If the acts omission or commission is  totally
alien to the discharge of the official duty, question  of  invoking  Section
197 CrPC does not arise.  We have already reproduced few passages  from  the
impugned order from which it is discernible  that  to  arrive  at  the  said
conclusion the learned Single Judge has placed reliance on the authority  in
B. Saha’s (supra).  The conclusion is  based  on  the  assumption  that  the
allegation is that while  being  a  public  servant,  the  alleged  criminal
breach of trust was committed while he was in public service.   Perhaps  the
learned Judge has kept  in  his  mind  some  kind  of  concept  relating  to
dereliction of duty.  The issue was basically  entrustment  and  missing  of
the entrusted items.  There is no dispute that the prosecution had to  prove
the case.  But the public servant cannot put forth a plea that he was  doing
the whole act as a public servant.  Therefore, it is extremely difficult  to
appreciate the reasoning of  the  High  Court.   As  is  noticeable  he  has
observed that under normal circumstances the offences  under  Sections  467,
468 and 471 IPC may be of such  nature  that  obtaining  of  sanction  under
Section  197  CrPC  is  not  necessary  but  when  the  said  offences   are
interlinked with an offence under Section 409  IPC  sanction  under  Section
197 for launching the prosecution for the offence under  Section  409  is  a
condition  precedent.   The  approach  and  the  analysis   are   absolutely
fallacious. We are afraid, though the High Court has  referred  to  all  the
relevant decisions in  the  field,  yet,  it  has  erroneously  applied  the
principle in an absolute fallacious manner.  No official  can  put  forth  a
claim that breach of trust is connected with  his  official  duty.    Be  it
noted the  three-Judge  Bench  in  B.  Saha  (supra)  has  distinguished  in
Shreekantiah Ramayya Munipalli (supra) keeping in  view  the  facts  of  the
case.  It had also treated the ratio in Amrik Singh (supra) to  be  confined
to its own peculiar facts.  The test to be applied, as has  been  stated  by
Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog  Dube  (supra)
which we have reproduced hereinbefore.  The three-Judge  Bench  in  B.  Saha
(supra) applied the test laid down in Gill’s case wherein Lord  Simonds  has
reiterated that the  test  may  well  be  whether  the  public  servant,  if
challenged, can reasonably claim, that what he does, he does  in  virtue  of
his office.
23.   Tested on the touchstone of said principles, it cannot  be  said  that
in the obtaining  factual  matrix,  sanction  under  Section  197  CrPC  was
necessary.  We are compelled to observe that  the  High  Court  should  have
been more vigilant in understanding the  ratio  of  the  decisions  of  this
Court.
24.   Another line of argument was advanced  on  behalf  of  the  appellant-
Corporation that even if the respondents are  treated  as  public  servants,
they being the employees of the Corporation, they do not get the  protective
shelter of Section 197 CrPC. In Lakshmansingh Himatsingh Vaghela (supra),  a
three-Judge Bench dissecting the anatomy of Section 197(1) CrPC opined  that
the said provision clearly intends to draw a line  between  public  servants
and to provide that only  in  the  case  of  the  higher  ranks  should  the
sanction of the government  to  their  prosecution  be  necessary.  While  a
public servant holding an office of the kind mentioned in the section is  as
such public servant appointed  to  another  office,  his  official  acts  in
connection with the latter office will also relate  to  the  former  office.
Thereafter, the Court ruled:-
“The words “removable from office” occurring in Section 197 signify  removal
from the office he is holding. The authority mentioned  in  the  section  is
the authority under which the officer is serving and competent to  terminate
his services. If the accused is under the  service  and  pay  of  the  local
authority, the appointment to an office for  exercising  functions  under  a
particular statute will not alter his status as an  employee  of  the  local
authority”.

25.   In the said case, the appellant was admittedly a  laboratory  official
in  the  service  and  pay  of  Municipal  Corporation  of  Ahmedabad.   His
appointment as Public Analyst by the Government, as held by this Court,  did
not confer him the status of a public servant or an  officer  under  service
and pay of the Government.  Being of this view, the Court opined he was  not
a public servant removable only by  the  State  Government  and  accordingly
allowed the appeal.
26.   In Md. Hadi Raja v. State of  Bihar[34]  the  question  arose  whether
Section 197 CrPC was applicable  for  prosecuting  officers  of  the  public
sector undertakings or the Government companies  which  can  be  treated  as
State within the meaning of Article 12 of the Constitution  of  India.   The
Court referred to Section 197 CrPC, noted  the  submissions  and  eventually
held that the protection by way of sanction under Section 197  CrPC  is  not
applicable  to  the  officers  of  Government  Companies   or   the   public
undertakings even when such  public  undertakings  are  ‘State’  within  the
meaning of Article 12 of the Constitution on account of deep  and  pervasive
control of the government.
27.   The High Court has not accepted the submission of the  Corporation  in
this regard.  We are constrained to note that the decision in Md. Hadi  Raja
(supra) has been referred to in  the  grounds  in  this  appeal.   There  is
nothing on record to suggest that the said decision  was  cited  before  the
High Court.  It has come  to  our  notice  on  many  an  occasion  that  the
relevant precedents are not cited by the  Corporations  and  the  government
undertakings before the High Court.  We should, as advised at present,  only
say that a concerted effort should be made in that regard so that  a  stitch
in time can save nine.
28.   In view of the aforesaid  analysis,  the  irresistible  conclusion  is
that the respondents are not entitled to have  the  protective  umbrella  of
Section 197 CrPC and, therefore, the High Court has erred in  setting  aside
the conviction and sentence on the ground that the trial is vitiated in  the
absence of sanction.  Consequently, we allow the appeal and  set  aside  the
judgment and order passed by the High Court and  remit  the  matter  to  the
High Court to decide the revision petition in accordance with law.

                                           ...............................J.
   [Dipak Misra]


                                           ...............................J.
New Delhi,                                [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1]     (1993) 3 SCC 339
[2]     (2006) 1 SCC (Cri) 432
[3]     (2006) 2 SCC (Cri) 358
[4]     (2007) 3 RCR (Criminal) 496 :
[5]     (1990) 4 SCC 169
[6]     (2004) 2 Cri. CC 575
[7]     (2009) 6 SCC 372
[8]     (2008) 11 SCC 289
[9]     (2009) 3 SCC 398
[10]    (2007) 1 RCR (Criminal) 1
[11]    (2008) 2 RCR (Criminal) 208
[12]    1988 (1) RCR (Criminal) 35
[13]    AIR 1967 SC 776
[14]    AIR 1956 SC 44
[15]    2001 (3) RCR (Cri.) 835 (SC)
[16]    (1979) 4 SCC 177
[17]    AIR 1955 SC 287
[18]    AIR 1955 SC 309
[19]    1939 FCR 159 (AIR 1939 FC 43)
[20]    1948 FCR 19 : (AIR 1948 PC 128)
[21]    AIR 1948 PC 156
[22]    AIR 1949 PC 117
[23]    AIR 1954 SC 455
[24]    AIR 1957 SC 458
[25]    AIR 1966 SC 220
[26]    (1972) 3 SCC 89
[27]    (1993) 3 SCC 339
[28]    (1997) 5 SCC 326
[29]   (1999) 5 SCC 690
[30]   (2004) 2 SCC 349
[31]   (2007) 1 SCC 1
[32]   (2009) 3 SCC 398
[33]   (1970) 2 SCC 56
[34]    AIR 1998 SC 1945

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