1. Complaint for offences under Sections 166, 167, and 182, IPC — Challenge to cognizance based on lack of sanction under Section 197, CrPC. (Para 2 )
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1966 Supreme(SC) 331
SUPREME COURT OF INDIA
K. SUBBA RAO C.J.I., J.C. SHAH, S.M. SIKRI, V. RAMASWAMI AND C.A. VAIDIALINGAM, JJ.
K. N. Shukla, Appellant
Versus
Navnit Lal Manilal Bhatt and another, Respondents.
Criminal Appeal No. 44 of 1965,
D/-15-12-1966.
Advocates appeared
Mr. B. Sen, Senior Advocate, (M/s. R. Ganapathy Iyer and R. H. Dhebar, Advocates with him), for Appellant; Mr. M. K. Ramamurthi Advocate, for M/s. Ramamurthi and Co. (for No. l) and Mr. R. H. Dhebar, Advocate (for No. 2), for Respondents.
Advocates:
B.SEN, M.K.RAMAMURTHI, R.Ganapathy Iyer, R.H.Dhebar, RAMAMURTHI
B.SEN, M.K.RAMAMURTHI, R.Ganapathy Iyer, R.H.Dhebar, RAMAMURTHI
A public servant officiating in a higher grade, but substantively in a lower grade, is not considered "not removable except by the Central Government" if the removal power is delegated to another authority. Such delegated authority is distinct from the Central Government for the purposes of Section 197 CrPC.
Headnote:(A) Code of Criminal Procedure, 1898 - Section 197 - Sanction for prosecution of public servant - Public servant not removable from office save by or with the sanction of the Central Government - Officiating officer in a higher grade - Whether sanction of the Central Government is necessary when the officer is removable by a delegated authority. (Paras 3, 5, 8)
(B) Service Rules - Distinction between substantive and officiating appointments - An officer officiating in a higher class who is substantively in a lower class is removable by the authority empowered to remove officers of that lower class or the delegated authority, and not necessarily by the Central Government. (Para 5)
(C) Delegation of Power - Whether a body exercising delegated powers of the Central Government is deemed to be the Central Government for the purpose of Section 197, CrPC - A separate body deriving powers through delegation is not the Central Government; the principle of qui facit per alium facit per se does not apply to extend the protection of Section 197 to officers removable by such delegated authority. (Paras 8, 9)
Facts of the case:
A public servant, holding a substantive post in a lower grade but officiating in a higher grade, was prosecuted for offences under the Indian Penal Code. The accused contended that as a public servant, he was not removable from office except with the sanction of the Central Government, and therefore, such sanction was mandatory under the Code of Criminal Procedure. The trial court and the High Court examined whether the officiating status affected the removal authority and the necessity of the sanction.
Findings of Court:
The court found that the accused was an officiating officer and not a substantive member of the higher class. According to the relevant service rules, the authority competent to remove such an officer was a delegated body and not the Central Government.
Issues: Whether a public servant officiating in a higher grade, but substantively belonging to a lower grade, falls within the category of officers "not removable from his office save by or with the sanction of the Central Government" under Section 197 of the Code of Criminal Procedure.
Ratio Decidendi: The court held that an officer merely officiating in a higher grade does not belong to that grade for the purpose of determining the removal authority. Furthermore, a body that exercises powers delegated by the Central Government is a separate entity and not the Central Government itself. Once the power to appoint and remove is delegated to another authority, the officer is not entitled to the protection of Section 197 CrPC requiring the sanction of the Central Government. (Paras 8, 9)
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether an officiating officer, substantively in a lower grade, is removable only by Central Government sanction under Section 197, CrPC, or by a delegated authority. (Para 3 , 6 , 7 , 9 )
3. Officiating appointments are made by delegated authorities; a statutory board exercising delegated powers is a separate entity from the Central Government. (Para 4 , 8 )
4. A public servant removable by a delegated authority is not a person not removable except by the sanction of the Central Government under Section 197, CrPC. (Para 8 , 9 )
5. Appeal dismissed; High Court order directing trial to proceed under Sections 166 and 167, IPC upheld. (Para 10 )
6. Does an officer officiating in a higher post acquire the removal protections of that post?
No. If the rules provide that officiating appointments are made by a lower authority rather than the President, the officer remains removable by that authority and does not gain the protection of the higher post. (Para 4 )
7. Is a statutory board exercising delegated powers considered the Central Government for the purpose of Section 197, CrPC?
No. A board that derives its powers via delegation from the Central Government is a separate entity and not the Central Government itself for the purpose of sanction requirements. (Para 8 )
8. Does the principle of qui facit per alium facit per se apply to delegated removal powers under Section 197, CrPC?
No. Once the Central Government delegates the power of appointment and removal to another authority, the public servant is not treated as one removable only by the sanction of the Central Government. (Para 9 )
Judgement
RAMASWAMI, J. : This appeal is brought, by special leave, from the judgment of the High Court of Gujarat dated July 29, 1964 in Criminal Revision No. 385 of 1963.
2. On March 14, 1961 respondent No. 1 filed a complaint against the appellant who was officiating in the post of Divisional Operating Superintendent. Western Railway, Rajkot. It was alleged in the complaint that the appellant had committed offences under Ss. 166, 167 and 182, Indian Penal Code. The appellant objected before the trying Magistrate that the complaint under S. 182, Indian Penal Code by a private person was barred under S. 195 (1) (a) of the Code of Criminal Procedure and that as the alleged acts of the appellant were said to be done in is official capacity and in discharge of his official duty and as the appellant was a public servant not removable from his office save with the sanction of the Central Government the complaint was not maintainable in the absence of sanction of Central Government under S. 197 of the Criminal Procedure Code and the Magistrate was not competent to take cognizance of the offences under Ss. 166 ad 167, Indian Penal Code. The objections were overruled by the Judicial Magistrate first Class, Mehsana by his order dated October 14, 1961. The appellant took the matter in revision to the Sessions Judge of Mehsana who referred the matter to the High Court on January 31, 1962. In Criminal Reference No. 14 of 1962 the High Court ordered that the complaint under 182, Indian Penal Code was bad being contravention of the Provisions of S. 195, Criminal Procedure Code, but the High Court directed the trial Court to decide in the first instance whether the appellant was not removable from his office save with the sanction of the Central Government. Thereafter the Judicial Magistrate, First Class Mehsana, by his order dated February 28, 1963, held that the appellant was not removable from his office save with the sanction of the Central Government and the complaint should be rejected because there was no sanction granted under S. 197 of the Criminal Procedure Code. The first respondent preferred a revision petition before the Sessions Judge of Mehsana who dismissed it and confirmed the order of the Judicial Magistrate, First Class, Mehsana. The first respondent took the matter in revision to the High Court in Criminal Revision No. 385 of 1963. By its order dated July 29, 1964 the High Court held that the appellant being an officiating Class I Officer was removable by the Railway Board and no sanction of Central Government was necessary to prosecute the appellant as contemplated by S. 197 of the Criminal Procedure Code. The High Court accordingly directed that the case under Ss. 166 and 167, Indian Penal Code should proceed against the appellant.
3. The question presented for determination in this appeal is whether the appellant was, at the date of the complaint i.e., March 14, 1961, a public servant "who was not removable from his office save by or with the sanction of the Central Government within the meaning of S. 197 of the Criminal Procedure Code and therefore, whether sanction of Central Government was necessary for prosecuting the appellant of the offences under Ss. 166 and 167 of the Indian Penal Code.
4. It is not disputed that on the material date the appellant was officiating in the senior scale as Class I Officer in the Transportation (Traffic and Commercial) Department of the Western Railway. It is also not in dispute that the appellant was holding a substantive post as Class II Officer, though he was officiating as Class I Officer on March 14, 1961. The question to be considered is whether, on the material date, the appellant was not removable from his office save by the sanction of Central Government within the meaning of S. 197 of the Criminal Procedure Code. Under S.3 (8) (b) of the General Clauses Act "Central Government" shall in relation to anything done or to be done after the commencement of the Constitution, mean t
