IMPORTANT POINT
Indulgence in cheating, fabrication of records or misappropriation cannot be said to be in discharge of official duty. Section 197 Cr PC will not be attracted in such cases.

Judgment

KURIAN, J.

1. Whether sanction under Section 197 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) is required to initiate criminal proceedings in respect of offences under Sections 420, 468, 477A, 120B read with 109 of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’), is the question arising for consideration in these cases.

2. The District Registrar, Vijayawada lodged a complaint with the Inspector of Police, CBCID Vijayawada on 07.07.1999. The main allegation against the respondents was that while they were working as Sub-Registrars in various offices in the State of Andhra Pradesh, they conspired with stamp vendors and document writers and other staff to gain monetary benefit and resorted to manipulation of registers and got the registration of the documents with old value of the properties, resulting in wrongful gain to themselves and loss to the Government, and thereby cheated the public and the Government.

3. On the basis of the complaint, F.I.R. No. 35/1999 was registered by the appellant, and after investigation, report under Section 173(2) CrPC against 41 persons including the respondents herein, was submitted before the III Additional Chief Metropolitan Magistrate, Vijayawada. The respondents raised the objection that there was no sanction under Section 197 CrPC and hence the proceedings could not be initiated.

4. Learned Magistrate on 03.07.2007 passed an order holding that:

“Whether the sanction is required under Section 197 Cr.PC. or not to be considered during the trial and it is the burden on the complainant to prove that the accused acted beyond in discharge of their official duties and there is no nexus between the acts committed and their official duties and at this stage the question that the accused acted within their duties cannot be decided.”

5. Aggrieved, respondents moved the High Court under Section 482 CrPC leading to the impugned order whereby the criminal proceedings were quashed on the sole ground that there was no sanction under Section 197 CrPC, and hence the appeals.

6. Heard Mr. Guntur Prabhakar, Ms. Prerna Singh and Mr. D. Mahesh Babu, learned Counsel appearing for the appellants and Shri K. Maruthi Rao, Mr. K. Subba Rao, Mr. Aniruddha P. Mayee, Mr. V. Sridhar Reddy and Mr. V.N. Raghupathy, learned Counsel appearing for the respondents.

7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them “while acting or purporting to act in discharge of their official duty”. That question is no more res integra. In Shambhoo Nath Misra v. State of U.P. and others, (1997) 5 SCC 326 at paragraph-5, this Court held that:

“5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.”

8. In Parkash Singh Badal v. State of Punjab and others, (2007) 1 SCC 1 at paragraph-20, this Court held that:

“20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects the