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
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[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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27
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
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[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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