1. Criminal breach of trust by a Magistrate — Conviction under Section 409, Indian Penal Code — Challenge to cognizance without sanction under Section 197, Code of Criminal Procedure. (Para 2 , 3 )
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1961 Supreme(SC) 119
SUPREME COURT OF INDIA
K.Subba Rao : Raghubar Dayal
Keshavlal Mohanlal Shah
Versus
State Of Bombay
Case No. : 127 of 1960
Date of Decision : 3/17/61
Advocates Appeared: Dhebar R.H. : Maheshwari B.P. : Sawhney Virsen : Sen T.M.
Advocates:
B.P.MAHESHVARI, R.H.Dhebar, T.M.SEN, VIRSEN SAWHNEY
B.P.MAHESHVARI, R.H.Dhebar, T.M.SEN, VIRSEN SAWHNEY
Previous sanction under Section 197 of the Code of Criminal Procedure is not required for a court to take cognizance of an offence committed by a Magistrate in the discharge of official duty if the person has ceased to be a Magistrate at the time of taking cognizance.
Headnote:(A) Code of Criminal Procedure - Section 197 - Indian Penal Code - Section 409 - Cognizance of offence - Previous sanction of State Government - Whether sanction is required when the accused, who committed the offence while acting in official duty, has ceased to be a Magistrate at the time the court takes cognizance - The protection under Section 197 is available only when the person is a Magistrate at the time the court takes cognizance of the offence - If a person is not a Magistrate at the time the accusation is made to the court, the court can take cognizance without previous sanction (Paras 5, 6, 8).
(B) Prevention of Corruption Act, 1947 - Section 6 - Interpretation of sanction requirements - A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority, and thus no previous sanction is necessary for taking cognizance (Paras 11, 12).
Facts of the case:
A former Third Class Magistrate was accused of committing criminal breach of trust by failing to credit security money received for bail into the official records. The individual was dismissed from service following a departmental enquiry. Subsequently, a complaint was filed, and the individual was convicted under Section 409 of the Indian Penal Code. The primary contention in appeal was that the court should not have taken cognizance without the previous sanction of the State government under Section 197 of the Code of Criminal Procedure.
Findings of Court:
The court found that the requirement for previous sanction under Section 197 of the Code of Criminal Procedure applies only if the accused is a Magistrate at the time the court takes cognizance of the offence. Since the appellant had ceased to be a Magistrate before the complaint was filed, no such sanction was necessary.
Issues: Whether the provisions of Section 197 of the Code of Criminal Procedure prohibit a court from taking cognizance of an offence committed by a Magistrate while acting in the discharge of official duty even when he is no longer a Magistrate on the date the court takes cognizance.
Ratio Decidendi: The phrase "when any Magistrate... is accused of any offence" indicates that the status of being a Magistrate must exist at the time the court is asked to take cognizance. If the person is no longer employed or holding the office, the requirement for sanction by the government does not apply, as the person is no longer removable from office.
Result: Appeal dismissed.
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Table of Contents
2. Whether Section 197, Code of Criminal Procedure requires previous government sanction for cognizance of offences committed by a Magistrate who ceased to hold office before the complaint. (Para 4 , 9 )
3. Interpretation of the terms Magistrate and public servant under Section 197, Code of Criminal Procedure — Analysis of employment status and timing of accusation for sanction requirements. (Para 5 , 6 , 7 , 8 , 9 , 10 )
4. Previous sanction under Section 197, Code of Criminal Procedure is unnecessary if the accused ceased to be a Magistrate before the court took cognizance of the offence. (Para 12 , 13 )
5. Appeal dismissed. (Para 13 )
6. Is previous government sanction required under Section 197, Code of Criminal Procedure if the accused is no longer a Magistrate?
No. Previous sanction is not necessary for a court to take cognizance of an offence committed by a Magistrate while acting in official duty if they had ceased to be a Magistrate at the time the complaint is made or police report is submitted. (Para 8 , 13 )
7. At what stage is a person considered accused for the purpose of determining sanction requirements under Section 197, Code of Criminal Procedure?
A person is considered accused for the purposes of the court when a complaint is made or a police report is submitted to the court, rather than when an allegation is first made to a superior officer or the police. (Para 9 )
8. How does the employment status of a public servant affect the requirement for sanction under Section 197, Code of Criminal Procedure?
Sanction is required for persons employed in connection with the affairs of the Union or State. If the person is no longer employed at the time of the submission of the complaint or police report, no sanction is necessary. (Para 10 )
RAGHUBAR DAYAL, J.
(1) THIS appeal, by special leave, is directed against the judgment of the Bombay High court.
(2) THE appellant was a Third Class Magistrate at Sanand in 1951. He received Rs. 200.00 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail. This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount.
(3) THE appellant was dismissed from service on 4/04/1953, as a result of a departmental enquiry. On 9/06/1954, a complaint was filed on behalf of the State against the appellant. He was convicted of the offence under s. 409, Indian Penal Code, by the Trial Magistrate. The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad. His revision was dismissed by the High court.
(4) THE only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State government in view of the provisions of s. 197, Code of Criminal Procedure.
(5) IT is not disputed that a court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on 9/06/1954. The appellant was not a Magistrate on 9/06/1954, when the complaint was filed. The question then is whether the provisions of s. 197 of the Code of Criminal Procedure prohibit a court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the court takes cognizance. Ss. (1) of s. 197, Code of Criminal Procedure, reads: `(1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State government or the central government, is accused of any offence alleged to have been committed by him while acting or 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 employed in connection with the affairs of the Union, of the central government; and (b) in the case of a person employed in connection with the affairs of a State, of the State government.`
(6) THERE cannot be much scope for the contention that a court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression any person who is a Judge, in the subsection. Similar expression is not used in describing a Magistrate or a public servant. But it is clear that those two persons should also be Magistrate or a public servant at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty.
(7) IN connection with public servant the expression who is not removable from his office save by or with the sanction of a State government or the central government indicates that. It is only when the public servant concerned is in service that the question of his removal from office can arise. If the public servant has ceased to be a public servant, no such question arises. Therefore it seems proper to construe the expression when any Magistrate in the subsection to mean when a person who is a Magistrate.
(8) EVEN if the expression be not construed in this form, the section says: when any Magistrate...... is accused of any offence. This indicates that it is only when the accusation is against a Magistrate that the court will not take cognizance of an offence committed by him while acting in the discharge of his official duty, without previous sanction. If a person is not a Magistrate at the
