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2008(1) Supreme 572
Supreme Court of india
(From Bombay High Court)
Raghunath Anant Govilkar — Petitioner
versus
State of Maharashtra and Ors. — Respondents
Special Leave Petition (crl.) 5453 of 2007
Decided on : 08-02-2008
(1987) 4 SCC 663; (1967) 1 SCR 201 – Relied upon.
(b)Code of Criminal Procedure, 1973 – Section 197 – If the conditions mentioned in section 197 are not made out or are absent, then no prosecution can be set in motion – Use of the words ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete – A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty. (Para 11)
(c)Code of Criminal Procedure, 1973 – Section 197 – Official duty – Official duty implies that the act or omission must have been done by the public servant in the course of his service – Such act or omission must have been performed as part of duty which further must have been official in nature – If on facts it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official, to which applicability of Section 197 of the Code cannot be disputed. (Paras 14 and 17)
(1979) 4 SCC 177; (1955) 2 SCR 925 – Relied upon.
(d)Code of Criminal Procedure, 1973 – Section 197 – An accused facing prosecution cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. (Para 21)
(1958) SCR 1040; (1993)3 SCC 339; (1998)6 SCC 411 – Relied upon.
(e)Code of Criminal Procedure, 1973 – Section 197 – Appellant was in Government service till 31.8.1989 and the complaint was filed on 17.7.1989 – High Court, therefore, was in error in observing that sanction was not necessary.(Para 26)
(1996) 1 SCC 478; (2004)2 SCC 349; (2004)8 SCC 40; (2004)8 SCC 31; (2006)1 SCC 557 – Relied upon.
(f)Code of Criminal Procedure, 1973 – Section 197 – It is not every offence committed by a public servant which requires sanction for prosecution under Section 197 nor even every act done by him while he is actually engaged in the performance of his official duties – It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct – in such circumstance, want of sanction under Section 197 is no bar. (Para 29)
(1999) 5 SCC 690; AIR 1955 SC 287; AIR 1955 SC 309; (1972)3 SCC 89 – Relied upon.
(g)Indian Penal Code, 1860 – Sections 406, 409 and 120B r/w section 197, Cr. P.C. – Section 406 and 409 are cognate offences in which the common component is criminal breach of trust – When the offender in an offence under Section 406 is a public servant, the offence would escalate to Section 409 – Well settled that in regard to the offence under Section 409 of IPC read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust – Therefore it cannot be contended that if the offence is under Section 406 read with Section 120-B, it would make all the difference vis-à-vis Section 197 Cr. P.C. – Charged offences being not relatable to any official duty, sanction u/s 197 C. P.C. was not required.(Paras 30 and 31)
Facts of the case:
1.The allegation against the appellant was that while working with Maharashthon Housing and Area Development Authority (in short ‘MHADA’) the appellant allotted premises to various persons under his signature, issued rent receipts so that the said persons could claim that they were in possession of the tenements, though in fact, the tenements, in question, were vacant and were not in possession of MHADA.
2.Before the Trial Court, the appellant filed an application for discharge in terms of Section 228 of the Code of Criminal Procedure, 1973.
3.The application was dismissed by the Trial Court.
4.The High Court by the impugned order dismissed the petition affirming the view taken by the Trial Court.
Findings of the Court:
Although in view of the fact that cognizance of the offences was taken while the appellant was in service and hence sanction u/s 197 Cr. P.C. was required; sanction was not required because the charges were not relatable to any official duty.
Result : Appeal dismissed.
judgment
Dr. Arijit Pasayat, J. —
1.Leave granted.
2.The challenge in this appeal is to the order passed by the learned Single Judge of the Mumbai High Court dismissing the Criminal Writ Petition filed by the appellant for quashing the proceedings pending before the Addl. Chief Metropolitan Magistrate, 37th Court, Eaplanade. The appellant was the accused No.10 in the said case. The allegation against the appellant was that while working with Maharashthon Housing and Area Development Authority (in short ‘MHADA’) the appellant allotted premises to various persons under his signature, issued rent receipts so that the said persons could claim that they were in possession of the tenements, though in fact, the tenements, in question, were vacant and were not in possession of MHADA.
3.According to the prosecution, the appellant committed offences punishable under Sections 420, 465, 466, 467, 468 and 471 of the Indian Penal Code, 1986 (in short ‘IPC’). Before the Trial Court, the appellant filed an application for discharge in terms of Section 228 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’) primarily on the ground that sanction was necessary for his prosecution. It was also submitted that proceedings could not have been initiated after his retirement in view of what has been stated under Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982 (in short ‘Pension Rules’). The application was dismissed by the Trial Court. It was noted that the appellant was in Government service till 31.8.1989. The complaint was filed on 17.7.1989 which was treated as an FIR and, therefore, Rule 27 of the Pension Rules have no application. As regards the requirement of sanction in terms of Section 197 Cr.P.C. it was held that acts done by the accused did not fall within the ambit of official duty and, therefore, question of sanction did not arise.
4.The High Court by the impugned order dismissed the petition affirming the view taken by the Trial Court. It was held that on 10.8.1992 when the cognizance was taken, the appellant had ceased to be a public servant.
5.Learned counsel for the appellant submitted that the acts done had clearly link with the official duty. The language of Section 197 Cr.P.C. is very clear that if the impugned acts were done when the accused was in service, sanction in terms of Section 197 Cr.P.C. is necessary.
6.Learned counsel for the State supported the orders impugned.
7.The pivotal issue i.e. applicability of Section 197 Cr.P.C. needs careful consideration. In Bakhshish Singh Brar v. Gurmej Kaur,1 (1987 (4) SCC 663), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:
“It is necessary to protect the public servants in the discharge of their duties–.In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding cut as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section (sic197) states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.”
8.The protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or adequate protection to public servants to ensure that they are not prosecuted for anything done by them, in the
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