Headnote:
Code of Criminal Procedure, 1898 – Section 197 – Indian Penal Code, 1860 – Sections 120, 166, 409 – Imports and Exports (Control) Act – Section 5 – Sea Customs Act – Sections 166, 117, 155 – Raid – Complainant was the sole representative in India of various manufacturing concerns in West Germany, and was carrying on business under the style of "House of German Machinery". – He imported certain items of machinery from the German firms for displaying them in the International Industries Fair held in New Delhi in November 1961 – In spite of the fact that he had obtained a valid Customs Clearance Permit for the import of these items of machinery, the Customs Authorities prevented him from clearing the goods from the Railway Station – Ultimately, the complainant was able to clear the goods by obtaining the necessary permission from Government – He was allowed to retain the imported goods with him till the first of June, 1962 – Goods were to be re-exported from India, thereafter. – Respondent applied for extension of the period, but his request was declined – Accused (appellants) raided premises of the complainant at 30, Pusa Road, New Delhi, and seized some of those imported goods which were meant for display in International Industries Fair – Appellants also seized certain other goods kept by complainant at the site of Fair, itself – Inventories of the goods were prepared by appellants at time of their seizure – Goods were then packed in boxes and sealed by appellants with their own seals which were signed by complainant as well as appellants – One copy of inventories, duly signed by appellants and complainant, also, was handed over to time – Complainant made an application before Sub-Divisional Magistrate, praying that goods seized by appellants be handed over to him on Superdari as they were likely to deteriorate unless kept safely under proper conditions – Sub-Divisional Magistrate, made an order directing that all goods seized by appellants be handed over to complainant on Superdari – Held, It was laid down that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant – If they do, then sanction is requisite – But if they are unconnected with such duties, then no sanction is necessary – Amrik Singhs case also stands on its own fact, which were materially different from those of the present case – Correctness of that decision was doubted in Baijnath v. State of Madhya Pradesh (supra), and its authority appears to have been badly shaken – Its ratio must be confined to its own peculiar facts – Sanction under Section 197, Criminal Procedure Code for prosecution for an offence under section 409, I. P. C. – Was not necessary – In Om Prakash Guptas case (ibid) 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 not absolute, the question being dependent on the facts of each case, court do not think it necessary to burden this judgment with a survey of all those cases. – Court is of opinion that on facts of present case, sanction of appropriate Government was not necessary for prosecution of appellants for an offence under Sections 409/120-B, Indian Penal Code, because alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, commission of offence having no direct connection or inseparable link with their duties as public servants – At most official status of appellants furnished them with an opportunity or occasion to commit alleged criminal act – Appeal Dismissed

Judgement Key Points

Key Points: - The appeal arises from a criminal complaint alleging offences under Sections 120-B/166/409 of the Indian Penal Code against Customs Officers (!) . - The complainant alleged that the appellants raided his premises and seized imported goods, and later some of these goods were found to be missing or damaged [1000183990005][1000183990006]. - The appellants contended that sanction under Section 197 of the Criminal Procedure Code was necessary for their prosecution [1000183990008]. - The Magistrate initially accepted the objection regarding lack of sanction and discharged the appellants [1000183990009]. - The High Court held that no sanction was required as the appellants were not acting in the discharge of their official duties when they allegedly misappropriated the goods [1000183990011]. - The court reiterated that for Section 197 Cr.P.C. to apply, the offence must be committed in the official capacity or under colour of office [1000183990018]. - A key test is whether the public servant can reasonably claim that what they did, they did in virtue of their office [1000183990019]. - The court found that the alleged act of criminal misappropriation was not committed while acting or purporting to act in the discharge of official duty, and had no direct connection or inseparable link with their duties [1000183990028]. - The official status of the appellants merely provided an opportunity or occasion to commit the alleged criminal act [1000183990028]. - The appeal was dismissed, upholding the High Court's decision that sanction was not necessary [1000183990029] (!) .

What is the requirement of sanction for prosecuting a public servant for criminal misappropriation when the act is not directly connected to their official duties?

What is the test to determine if an act of a public servant is done in the discharge of their official duty for the purpose of Section 197 of the Criminal Procedure Code?

What is the applicability of Section 197 of the Criminal Procedure Code to an offence under Section 409 of the Indian Penal Code when the alleged misappropriation occurs after seizure of goods?

Judgment

SARKARIA, J.:- This appeal by special leave directed against a judgment, dated May 3, 1962, of the Delhi High Court, arises out of these circumstances:

M. S. Kochar, the respondent herein, filed a complaint in the Court of the Sub-Divisional Magistrate, Delhi, alleging that the appellants herein, who are officers of the Customs Department, had committed offences under Sections 120-B/166/409, Indian Penal Code. It was stated in the complaint as follows:

The complainant was the sole representative in India of various manufacturing concerns in West Germany, and was carrying on business under the style of "House of German Machinery". He imported certain items of machinery from the German firms for displaying them in the International Industries Fair held in New Delhi in November 1961. In spite of the fact that he had obtained a valid Customs Clearance Permit for the import of these items of machinery, the Customs Authorities prevented him from clearing the goods from the Railway Station. Ultimately, the complainant was able to clear the goods by obtaining the necessary permission from the Government. He was allowed to retain the imported goods with him till the first of June, 1962. The goods were to be re-exported from India, thereafter. The respondent applied for extension of the period, but his request was declined.

2. On June 16, 1962, the accused (appellants) raided the premises of the complainant at 30, Pusa Road, New Delhi, and seized some of those imported goods which were meant for display in the International Industries Fair. The appellants also seized certain other goods kept by the complainant at the site of the Fair, itself. Inventories of the goods were prepared by the appellants at the time of their seizure. The goods were then packed in boxes and sealed by the appellants with their own seals which were signed by the complainant as well as the appellants. One copy of the inventories, duly signed by the appellants and the complainant, also, was handed over to tim.

3. On November 28, 1963, the complainant made an application before the Sub-Divisional Magistrate, praying that the goods seized by the appellants be handed over to him on Superdari as they were likely to deteriorate unless kept safely under proper conditions. The Sub-Divisional Magistrate, on January 22, 1964, made an order directing that all the goods seized by the appellants be handed over to the complainant on Superdari.

4. The Customs, however, felt aggrieved by this order of the Magistrate and went in revision against it before the Additional Sessions Judge, Delhi, who, on February 7, 1964, passed an order staying delivery of possession. Subsequently, by order dated April 3, 1965, the Additional Sessions Judge dismissed the revision-petition and vacated the stay order. In spite of the order of the Magistrate, confirmed by the Additional Sessions Judge the Customs handed over to the complainant on Superdari only a part of the goods seized and a in respect of the remaining goods, the Customs Authorities went in further revision to the High Court and obtained an interim stay of the order of the Additional Sessions Judge.

5. Subsequently, on August 22, 1966, the High Court made an order directing that all the goods which had been seized by the Customs Authorities from the complainant, including those which had been returned to him on Superdari, should be produced before the Sub-Divisional Magistrate, who was seized of a case under Section 5 of the Imports and Exports (Control) Act and Section 166 (81) of the Sea Customs Act, regarding the goods, pending against the complainant. Accordingly, Shri H. L. Sikka, Sub-Divisional Magistrate, prepared two inventories of these goods on November 16, 1966 and thereafter the boxes were opened before Shri Sikka, who got inventories of the goods found therein prepared, and after noting the condition of those goods, he got the same repacked and sealed in proper boxes in the presence of the parties with a seal of the Co

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1979 Supreme(SC) 325

What is the requirement of sanction for prosecuting a public servant for criminal misappropriation when the act is not directly connected to their official duties?

What is the test to determine if an act of a public servant is done in the discharge of their official duty for the purpose of Section 197 of the Criminal Procedure Code?

What is the applicability of Section 197 of the Criminal Procedure Code to an offence under Section 409 of the Indian Penal Code when the alleged misappropriation occurs after seizure of goods?

Cases Referred (7)