2023 Supreme(SC) 989

SUPREME COURT OF INDIA
B.R. GAVAI, J.B. PARDIWALA, JJ.
A. Sreenivasa Reddy – Appellant
Versus
Rakesh Sharma & Anr. – Respondents
Criminal Appeal No. 2339 of 2023 (Arising out of S.L.P. (Criminal) No. 7542 of 2022)
Decided on : 08-08-2023

IMPORTANT POINTS
(1) Sanction for prosecution of public servant – Although a person working in a Nationalised Bank is a public servant, yet provisions of Section 197 of Cr.P.C. would not be attracted at all.
(2) Sanction for prosecution of public servant – Offences under IPC and offences under PC Act, 1988 are different and distinct – There can be no thumb rule that in a prosecution before court of Special Judge, previous sanction under Section 19 of PC Act, 1988 would invariably be the only prerequisite – Prosecution for offences exclusively under PC Act, 1988, sanction is mandatory qua public servant – In cases under general penal law against public servant, necessity or otherwise of sanction under Section 197 of Cr.P.C. depends on factual aspects.
(3) To commit offence punishable under law can never be part of official duty of a public servant.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of public servant – In Section 197 of Cr.P.C., word ‘sanction’ has been used as a verb and it will mean to assent, to concur or approval – Although a person working in a Nationalised Bank is a public servant, yet provisions of Section 197 of Cr.P.C. would not be attracted at all as Section 197 is attracted only in cases where public servant is such who is not removable from his service save by or with sanction of Government – Provisions of Section 197 of Cr.P.C. are not attracted at all in case of appellant who was serving as an Assistant General Manager, State Bank of India. (Paras 43 and 45)

(B) Prevention of Corruption Act, 1988 – Section 19 – Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of public servant – Offences under IPC and offences under PC Act, 1988 are different and distinct – There can be no thumb rule that in a prosecution before court of Special Judge, previous sanction under Section 19 of PC Act, 1988 would invariably be the only prerequisite – If offences on charge of which public servant is expected to be put on trial include offences other than those punishable under PC Act, 1988, court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages as case progresses, as to whether there is a necessity of sanction under Section 197 of Cr.P.C. – Prosecution for offences exclusively under PC Act, 1988, sanction is mandatory qua public servant – In cases under general penal law against public servant, necessity or otherwise of sanction under Section 197 of Cr.P.C. depends on factual aspects – Test in latter case is of “nexus” between act of commission or omission and official duty of public servant – To commit offence punishable under law can never be part of official duty of a public servant. (Paras 54 and 59)

(C) Indian Penal Code, 1860 – Sections 120-B r/w 420, 468 and 471 – Prevention of Corruption Act, 1988 – Section 19 – Criminal Procedure Code, 1973 – Sections 197 and 482 – Conspiracy, cheating and forgery – Common intention – Quashing of criminal proceedings – Appellant, while serving as Assistant General Manager, State Bank of India, is alleged to have conspired with other co-accused to cheat Bank by sanctioning a huge corporate loan without compliance of all principle/disbursement conditions – Charge-sheet submitted by CBI – Banking sector being governed by Reserve Bank of India and considered as a limb of State under Article 12 of Constitution and also by virtue of Section 46A of Banking Regulation Act, 1949, appellant his deemed to be a “public servant’ for the purpose of provisions under PC Act, 1988 – However, same cannot be extended to IPC – Protection available under Section 197 of Cr.P.C. is not available to appellant – Although appellant has been discharged from offences punishable under PC Act, 1988 yet for IPC offences, he can be proceeded further in accordance with law. (Paras 49 and 58 )

Facts of the case:

Present appeal arises from the judgment and order passed by a Single Judge of High Court for State of Telangana dated 20.06.2022 in the Criminal Petition No. 6782 of 2019 filed by appellant herein by which High Court rejected petition and thereby declined to quash criminal proceedings instituted against appellant for offence punishable under Sections 120-B r/w 420, 468 and 471 respectively of Indian Penal Code, 1860.

Questions of law fall for consideration are:-

(i) Whether appellant, serving in his capacity as an Assistant General Manager, State Bank of India, Overseas Bank, is removable from his office save by or with sanction of Government so as to make Section 197 of Cr.P.C. applicable?

(ii) Is it permissible for Special Court (CBI) to proceed against appellant for offences punishable under IPC despite fact that sanction under Section 19 of PC Act, 1988 to prosecute appellant for offences under PC Act, 1988, is not on record as same came to be declined?

Findings of Court:

Sanction initially was not declined on the ground that prosecution against appellant herein is frivolous or vexatious but same was declined essentially on the ground that what has been alleged is mere procedural irregularities in discharge of essential duties. Whether such procedural irregularities constitute any offence under IPC or not will be looked into by trial court.

Result : Appeal dismissed.