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
