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TMI Blog2016 (6) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1979 (7) TMI 242 - SUPREME COURT). 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, 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 ₹ 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 Chandig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eror 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:- "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 ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion 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 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 (1993) 3 SCC 339 , 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry, 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 (1999) 5 SCC 690 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sically 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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