Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. Vijyant Nirwan, Advocate.
For the Respondent: Mr. Javed Choudhary, PP.

IMPORTANT POINT
Where a public servant while working as such public servant failed to deposit the money and misappropriated if sanction for prosecution under Section 197 Cr.P.C. was necessary.

Headnote:Criminal Procedure Code, 1973—Section 197—Sanction for prosecution—Petitioner convicted by Courts below—Petitioner working in post of Cashier in office of Divisional Forest Officer received an amount from post office which had been got deposited from contractors in favour of Divisional Forest Officer—Petitioner made entry in cash book and then shown to have been deposited in the bank account—In fact amount was not deposited in bank account and was found misappropriated by petitioner—Whether prosecution was bad in law for want of sanction for prosecution? Yes.
       Held: On the same date sanction was also given for the prosecution of accused under Section 5(2), Prevention of Corruption Act and a similar sanction was given against accused 2. The question is whether this sanction against accused 2 can be extended to cover his prosecution under Section 409, IPC. In our opinion, it cannot.”
        11. After considering the facts of the case and the contentions raised before it, the Hon’ble Apex Court held as under-
        “18. Now it is obvious that if Section 197 Cr.P.C. is construed too narrowly it can never be applied, for of course it is no part of an officials duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning. What it says is:
        “when any public servant 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….”
        We have therefore first to concentrate on the word “offence”.
        19. Now an offence seldom consists of a single act. It is usually composed of several elements, and as a rule, a whole series of acts must be proved before it can be established. In the present case the elements alleged against accused 2 are, first, that there was an “entrustment” and/or “dominion” : second; that the entrustment and/or dominion was “in his capacity as a public servant”: third, that there was a “disposal”; and fourth, that the disposal was “dishonest”. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity.
        Therefore, the act complained of, namely the disposal could not have been done in any other way. If it was innocent, it was an official act: if dishonest, it was the dishonest doing of an official act but in either event the act was official because accused 2 could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal: and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered; so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done, in the one event, it would be one in the discharge of an official duty and in the other, in the purported discharge of it.
        20. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus “wilfully suffer” another person to use them dishonestly: Section 405 IPC. In both cases, the “offence” in his case would be incomplete without proving the official act.
        21. We, therefore, hold that Section 197 Cr.P.C. applies and that sanction was necessary, and as there was none the trial is vitiated from the start. We, therefore, quash the proceedings against accused 2 as also his conviction and sentence.
       Ultimately, the Hon’ble Apex Court, accepted the contention that sanction under Section 197 CrPC was necessary and in absence of it the trial was vitiated resulting in quashing of conviction and sentence of the accused petitioner No.2 in that case.
       Learned Public Prosecutor has relied upon the case of Sambhu Nath Mishra (supra) and submitted that the essential requirement postulated for sanction to prosecute a public servant is that the offence alleged against him must have been done while acting or purporting to act in discharge of his official duties. Further he has submitted that in order to give protection of Section 197(1)Cr PC the crime committed by the public servant must be integrally connected with his official duties. In that case, it was held that it was no duty of respondent No. 2 to fabricate false record and misappropriate the public fund etc in furtherance of or in the discharge of his official duties.
       However, it is to be noted that the principles of law, as laid down by the larger bench of the Hon’ble Supreme Court in the case of Shreekantiah Ramayya Munipalli (supra) had not been considered in the case of Sambhu Nath Mishra. As mentioned earlier, in the case of Shreekantaiah Ramayya Munipalli (supra),the Hon’ble Supreme Court had dealt with the question of sanction and circumstances for its requirement, in detail. In the case of Padmnabhan Nair (supra) the case of Shreekantaih Ramayya Munipalli (supra) was referred in para 9, but the same had not been taken up in detail. So far as the facts of the two cases cited by the learned public prosecutor are concerned, they are certainly different from the present one.
       Therefore, in the facts and circumstances of the casein hand, I am of the considered opinion that principle of law laid down by the larger Bench of the Hon’ble Supreme Court is to be followed. Keeping in view the said principle the prosecution case, in this case, has to go for want of sanction.
       Consequently, when the necessary sanction was not obtained, the trial in the instant case is vitiated from the beginning and there is no other option but to quash the proceedings against the accused petitioner and also his conviction and sentence. (Paras 11 to 16)