TaxTMI 
TaxTMI 
2016 (6) TMI 1138
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....rial 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 ....
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.... SC 776 , Matajog Dube v. H.C. Bahri AIR 1956 SC 44 , P.K. Pradhan v. State of Sikkim 2001 (3) RCR (Cri.) 835 (SC) , reproduced a passage from B. Saha v. M.S. Kochar (1979) 4 SCC 177, 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 o....
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....n 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 un....
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....ection 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 1939 FCR 159 (AIR 1939 FC 43) and H.H.B. Gill v. The King 1948 FCR 19 : (AIR 1948 PC 128). 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 AIR 1948 PC 156 , Phanindra Chandra v. The King AIR 1949 PC 117 and R. W. Mathams v. State of West Bengal AIR 1954 SC 455 and eventually held:- ....
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.... 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. AIR 1966 SC 220 , 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 Proced....
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.... "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 (1972) 3 SCC 89 , 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....
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...., 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 ....
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....ty 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 s....
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.... 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 AIR 1998 SC 1945 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 refer....