IMPORTANT POINTS
Whether an IAS heading a cooperative society on its supersession is a public servant depends upon the extent of State control. It is question of fact.
There can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406, 409, 420 etc. IPC.

JUDGMENT

RANJAN GOGOI, J.

1. Leave granted.

2. The appellant, at the relevant point of time, was a member of the Indian Administrative Service and serving on deputation as the Administrator-cum-Managing Director of the Bihar State Housing Cooperative Federation Ltd. The aforesaid Federation is a society registered under the Bihar Cooperative Societies Act, 1935. On the basis of the various complaints made against the appellant, FIR Nos. 837/2002 dated 16.12.2002, 859/2002 and 860/2002 both dated 24.12.2002, 19/2003 dated 07.01.2003 and 41/2003 dated 18.01.2003 under Sections 409/420/467/468/ 471/34/120-B of the Indian Penal Code (hereinafter for short 'IPC') were registered at Police Station Gardani Bagh (Shastri Nagar), Patna. On completion of investigation in all the cases, chargesheets were submitted before the competent court on the basis of which the learned Chief Judicial Magistrate, Patna took cognizance of the offences alleged against the appellant.

Aggrieved, the appellant filed revision applications before the learned Sessions Judge, Patna challenging the orders passed by the learned Trial Court, primarily, on the ground that the said orders were without jurisdiction and incompetent in law inasmuch as sanction for prosecution of the appellant under Section 197 of the Code of Criminal Procedure (hereinafter for short 'the Code') was not obtained or granted prior to the date of taking of cognizance. The revision applications filed by the appellant were dismissed by the learned Additional Sessions Judge, Fast Track Court No.2, Patna by orders of different dates.

The said orders of the learned Additional Sessions Judge were challenged before the High Court of Patna in Crl. Misc. No. 3187/2011, 3190/2011, 3191/2011 and 3192/2011. The High Court by the common impugned order dated 27.11.2012 negatived the challenge made by the appellant leading to the present appeals. There is yet another proceeding instituted by the appellant before the High Court i.e. Crl. Misc. No. 41263/2010 in respect of P.S. Case No. 859/2002 which has been dismissed by the High Court by its order dated 18.07.2012 on the ground that the order taking cognizance by the learned Trial Court had not been specifically challenged before it and it is only the order of the learned Sessions Judge that has been assailed by the appellant. The aforesaid order dated 18.7.2012 of the High Court has also been challenged by the appellant in the present group of appeals.

3. We have heard Mr. Santosh Mishra, learned counsel for the appellant and Mr. Abhinav Mukerji, learned counsel for the State.

4. As the arguments advanced on behalf of the rival parties are a reiteration of the arguments advanced before the High Court the detailed and specific contentions need not be taken note of and it will suffice to say that while the appellant contends that grant of sanction under Section 197 of the Code is a sine qua non for his prosecution for the offences alleged, according to the State of Bihar the appellant is not a public servant within the meaning of Section 21 of the IPC and in any case none of the offences alleged can be attributed to acts that arise out of or have any proximity with the discharge of official duties by the appellant so as to require sanction for his prosecution.

5. Section 197(1) of the Code will be required to be noticed at this stage and is therefore extracted below.

"197. Prosecution of Judges and public servants.-

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the 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 case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Centr