TaxTMI 
TaxTMI 
2003 (12) TMI 675
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....tion of Corruption Act, 1947 (for short the 'Old Act') corresponding to Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short the 'New Act'). The Special Judge (Forests), Shimla, directed the accused to be charged accordingly by his order dated 5.8.1995. In the other case charges were framed against the accused on 15.11.1995 for the offence punishable under Section 467, 468, 471, 420, 120-B IPC and Section 5(2)(1) (d) of the Old Act corresponding to Section 13(1)(d) of the New Act. 2. Sheaving out unnecessary details, the accusations leading to the framing of charges are as under:- The Controller of Stores, Himachal Pradesh had approved a rate, contract for the purchase of galvanized steel barbed wires for fencing at the ex factory rate, of Rs. 8400/- per M.T. This rate contract was valid up to the period ending 30.9.1985. No rate contract was approved in respect of this item for the period beginning 1.10.1985. On 20.10.1985, the Chief Sales Officer and the Executive Officer of H.P. Agro Industries Corporation wrote two identical letters to the Chief Conservator of Forests (T), Himachal Pradesh offering to supply barbed wire/GI wire and U staples ....
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....used in his capacity as Chief Conservator of Forests on 20.11.1985 for his comments. The Additional Controller of Stores on 26.11.1985 also took an objection to the purchases having been effected by the forest department from the H.P. Agro Industries Corporation without obtaining the requisite non-availability certificate from the Controller of Stores. It was also suggested that the supply orders already placed with the said Corporation may be cancelled forthwith. Some reports also appeared in the press alleging serious irregularities in the purchase of barbed wire by the forest department. Instructions were also issued by the State Government through its Secretary in the forest department to all the Conservator of Forests in Himachal Pradesh to cancel all the supply orders in respect of barbed wire/GI wire placed with the H.P. Agro Industries Corporation. Consequently, against the supply order of 1.200 M.T. placed with H.P. Agro Industries Corporation, supply of only 17.64 M.T. was actually effected through the Corporation before the cancellation could be intimated to the suppliers. 4. An enquiry committee was appointed by the State Government. The then Divisional Commissioner wh....
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....the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance, can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." 8. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is t....
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....the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 9. At this juncture, we may refer to P. Arulswami v. State of Madras 1967CriLJ665 , wherein this Court held as under: ".... It as not therefore every, offence committed by a public servant that requires sanction for prosecution under Section 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 virtues of the office, then sanction would be necessary. It is 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. An offence 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. It is only when it is either wit....
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....ants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have, been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and "shall" make it abundantly clear that the bar on the exercise power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causey'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining ....
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.... 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 part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. 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 ma....
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.... offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in Section 19 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction." 17. The correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanctions, if he ceased to be a public servant, on the date when the court took cognizance of the said offences. But the position is different in cases where Section 197 of the Code has application. 18. Section 197(1) provides that when any person who is or was 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 on purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) In the case of a person who is employed or, as the case may be, was at the time of commission o....