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SUPREME COURT OF INDIA
A.K SARKAR, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.
1. Baijnath (In Cr. As. Nos. 77 of 1962 and 74 of 1965), 2. G. V. Kale (In Cr. As. Nos. 162 and 163 of 1962), Appellants
Versus
State of M.P. (In all the Appeals ), Respondent.
Criminal Appeals. Nos. 77. 162 and 163 of 1962 and 74 of 1965.
Advocates appeared
Mr. A. S. R. Chari, Senior Advocate, (Mr. Ravinder Narain, Advocate of M/s. J.B. Dadachanji and Co., with him), for Appellant (In Cri. Appeals Nos. 77 of 1962 and 74 of 1965): Dr. W. S. Barlingay, Senior Advocate, (Mr. A. G. Ratnaparkhi, Advocate, with him), for Appellant (In Cri. Appeals Nos. 162 and 163 of 1962): Mr. I. N. Shroff, Advocate, for Respondent (In all the Appeals).
Per Majority: It is not 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 where 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. What is important is the quality of the act and the protection contemplated by S. 197 of the Criminal P. C. will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely Unconnected with the official duty as such or it may be committed within the scope of the official duty. If it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. AIR 1948 PC 128 and AIR 1948 PC 156 and AIR 1949 PC 117 and AIR 1954 SC 455, relied on. [Para 16]
Per Sarkar, J. : It is incorrect to say that in respect of an offence of criminal breach of trust no sanction is necessary as such an offence can never be said to be so committed because it is no part of the official duty of a public servant to misappropriate moneys of his employer. It will depend on the facts of each case whether an offence was committed in the course of official duty. 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. The act of misappropriation is one which must be said to have been done in the purported discharge of official capacity. No invariable proposition that an offence under S. 409 can never be committed by a public servant while acting in the discharge of his official duty, can be laid down. AIR 1939 FC 43 and AIR 1948 PC 128 and AIR 1955 SC 287 relied on. [Paras 6, 7]
G and K were respectively the Chief Accountant-cum-office Superintendent and Assistant Cashier of the Madhya Bharat Electric Supply, an enterprise run by the Government of Madhya Bharat. Of the two G was a public servant who was not removable from his office save by the sanction of the Madhya Bharat Government. G and K were prosecuted for offences under Sections 477-A, 409 read with S. 109, Penal Code and were convicted for offences committed under those sections. In an appeal by the accused to the Supreme Court the principal question of law raised was whether the conviction of G under Ss. 409 and 477-A, Penal Code, was illegal as no sanction of the State Government was obtained to his prosecution under the provisions of S. 197, Criminal P. C.
Held: The conviction under Section 477-A, read with S. 109, of G could not be sustained as sanction to start the proceedings had not been duly obtained under S. 197 of the Code of Criminal Procedure. [Paras 2, 18]
Per Majority: Sanction of the State Government was not necessary for the prosecution of G under S. 409 of the Penal Code, because the act of criminal misappropriation was not committed by him while he was acting or purporting to act in the discharge of his official duties and that offence had no direct connection with the duties of G as a public servant, and the official status of him only furnished with an occasion or an opportunity of committing the offence. Hence with regard to the charge under section 409 the conviction imposed by the lower Courts had to be maintained. AIR 1939 FC 43 and AIR 1948 PC 128 and AIR 1960 SC 266, Relied on; AIR 1955 SC 309, Doubted. [Paras 17, 19 & 20]
Per Sarkar, J. (Contra) : The conviction of G for defalcation of sums was bad in the absence of the necessary sanction. AIR 1955 SC 309, Followed; (S) AIR 1957 SC 458 and AIR 1960, SC 266, Explained. [Para 9]
(2) Criminal P. C., 1898-S. 197-taking cognizance of offence.
The police submitted charge sheet against the accused on 4-4-1953. The order sheet showed that on 6-4-1953 the Magistrate ordered that prosecution witnesses were to be summoned on a future date and that the accused were to be present in Court from the jail on that date.
Held: The Magistrate took cognizance of the offence on 6-4-1953. [Paras 4, 20]
(3) Criminal P. C., 1898-S. 197-stage at which sanction is to be obtained.
It is clear from the language of S. 197 that the sanction has to be taken before cognizance of an offence has been taken. [Para 4]
Judgement
SARKAR, J.: I have had the advantage of reading the judgment to be delivered by my learned brother Ramaswami in these four appeals. I agree with him that the appeals by the appellant Kale, being Criminal Appeals Nos. 162 of 1962 and 163 of 1962 should be dismissed and have nothing to say in regard to these appeals.
2. The other two appeals, namely, Criminal Appeals Nos. 77 of 1962 and 74 of 1965 are by the appellant Gupta against his conviction under S. 477-A read with S. 109, and S. 409 of the Indian Penal Code. Ramaswami J. is of the opinion that the conviction under S. 477-A, read with S. 109, cannot be sustained as sanction to start the proceedings had not been duly obtained under S. 197 of the Code of Criminal Procedure. This is also my view. In regard to the conviction for the other offence, his opinion is that sanction was not necessary and so, that conviction should upheld.. With this view I am unable to agree and in this judgment I will deal only with this matter.
3. The appellants Gupta and Kale were respectively the Chief Accountant-cum-Office Superintendent and Assistant Cashier of the Madhya Bharat Electric Supply, an enterprise run by the Government of Madhya Bharat. It is not disputed that Gupta was a public servant who was not removable from his office save by the sanction of the Madhya Bharat Government. The only point is whether in regard to the charge under S. 409 he was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. If he was, then in view of S. 197 of the Code of Criminal Procedure no Court could take cognizance of the offence without the sanction of the Government of Madhya Bharat and his conviction under S. 409 of the Indian Penal Code cannot be upheld.
4. It appears that in fact a sanction under S. 197 of the Code of Criminal Procedure was obtained but as this was done after cognizance had been taken, it was of no use. It is clear from the language of S. 197 that the sanction has to be taken before cognizance has been taken. This indeed is not disputed. It is also clear from the facts that cognizance of the case had been taken on April 6, 1953 when witnesses were summoned on future date so that the matter might be enquired into by the Magistrate: see Hori Ram Singh v. Emperor, 1939 FCR 159 at p. 179, R. R. Chari v. State of Uttar Pradesh, 1951 SCR 312 and Gopal Marwari v. Emperor, ILR 22 Pat 433. The sanction, however, was obtained on July 1, 1953. I, therefore, have to proceed on the basis that the sanction had not been obtained.
5. Criminal Appeal No. 77 of 1962 arises out of a criminal misappropriation by Gupta of Rs. 10,000 and Criminal Appeal No. 74 of 1965 out of a similar misappropriation of Rs. 21,450, both of which sums were entrusted to him in his official capacity. The challan in the first case was in these terms:
"Both the accused in conspiracy with each other have embezzled an amount of Rs. 10,000 on 25-8-50 from this Government money and made false entries of receipt and expenditure in the concerned Government registers for concealment of this embezzlement. From investigation, doing of an offence under Ss. 409. 477A and 34, Indian Penal Code is proved against both the aforesaid accused. Hence the charge sheet is submitted for awarding sentences according to law."
The chalan in the other case states,
"Both these accused in conspiracy with each other have embezzled an amount of Rupees 21,133-5-0 on 29-9-50 and expenditure of Rs. 1,450 is shown and it is written there that this amount has been remitted in the treasury but actually Rs. 1,135-5-0 were emitted in the treasure on that date and the balance of Rs. 21,450 was embezzled and false entries were made in the account books. From an investigation, the offence under S. 409, 477A and 34, Indian Penal Code is found and the Chalan is submitted."
There is some confusion in the wording of this chalan but it is not in dispute that what was meant was that Rs. 21
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