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1998 Supreme(P&H) 308
PUNJAB & HARYANA HIGH COURT
Sarojnei Saksena, J.
State Of Haryana
Versus
Kehar Singh
Criminal Revision No. 534 of 1997,
Decided On : FEBRUARY 23, 1998
Prior sanction under Section 197(1) of the Code of Criminal Procedure is not required for prosecuting a public servant for an offence committed by him while purporting to act in the discharge of his official duty unless the act complained of is integrally connected or inseparably interlinked with the alleged crime committed in the course of the same transaction.
Headnote:
CRIMINAL REVISION - PUBLIC SERVANT - SANCTION UNDER SECTION 197, CR. P. C. - WHETHER REQUIRED - SARPANCH OF GRAM PANCHAYAT - WHETHER A PUBLIC SERVANT - WHETHER PROTECTION UNDER SECTION 197(1) OF THE CODE IS AVAILABLE - WHETHER ACT COMPLAINED OF WAS COMMITTED BY HIM WHILE DISCHARGING HIS OFFICIAL DUTY - WHETHER THERE IS A REASONABLE CONNECTION BETWEEN THE ACT AND THE OFFICIAL DUTY - WHETHER SANCTION IS REQUIRED UNDER SECTION 197(1) OF THE CODE OF CRIMINAL PROCEDURE.
Fact of the Case:
The accused-respondent, Kehar Singh, was the Sarpanch of Gram Panchayat Nidana. During his tenure, he allegedly misappropriated government funds by showing the use of superior quality cement and bricks in the construction of village pond walls, school rooms, and village drainage, while in the Panchayat office accounts, he showed the cost of inferior quality materials. An FIR was lodged, and a challan was submitted to the Chief Judicial Magistrate, Karnal, without obtaining prior sanction under Section 197, Cr. P. C. The accused-respondent raised an objection, and the Chief Judicial Magistrate discharged him, giving the prosecution an opportunity to present the challan after obtaining appropriate sanction from the State Government.
Finding of the Court:
The court held that the accused-respondent, as the Sarpanch of the Gram Panchayat, was a public servant and that the protection under Section 197(1) of the Code of Criminal Procedure was available to him. However, the court found that the acts complained of, namely, showing the use of better quality materials and fabricating Panchayat records, were not integrally connected or inseparably interlinked with the alleged crime of embezzlement and fabrication of records committed in the course of the same transaction. Therefore, the court held that prior sanction under Section 197(1) of the Code of Criminal Procedure was not required.
Issues: 1. Whether the accused-respondent, as the Sarpanch of the Gram Panchayat, was a public servant. 2. Whether the protection under Section 197(1) of the Code of Criminal Procedure was available to the accused-respondent. 3. Whether the acts complained of were committed by the accused-respondent while discharging his official duty. 4. Whether there was a reasonable connection between the acts complained of and the official duty of the accused-respondent. 5. Whether sanction was required under Section 197(1) of the Code of Criminal Procedure.
Ratio Decidendi: The court held that the accused-respondent was a public servant and that the protection under Section 197(1) of the Code of Criminal Procedure was available to him. However, the court found that the acts complained of were not integrally connected or inseparably interlinked with the alleged crime of embezzlement and fabrication of records committed in the course of the same transaction. Therefore, the court held that prior sanction under Section 197(1) of the Code of Criminal Procedure was not required.
Final Decision: The court allowed the revision petition, set aside the impugned order, and directed the Chief Judicial Magistrate, Karnal, to proceed further in the case in accordance with the law.
1. Being aggrieved by the order of Chief Judicial Magistrate, Karnal dated 17-12-1996 passed in case No. 478 of 1994 State V/s. Kehar Singh, the State of Haryana has filed this criminal revision.
2. Briefly stated the prosecution case was that respondent-accused Kehar Singh was Sarpanch of Gram Panchayat Nidana. During his tenure as Sarpanch he misappropriated Government funds. He got four walls of village pond constructed by using inferior quality of cement and bricks while in the accounts maintained in the Panchayat office he has shown the cost of superior quality of cement and bricks. As per the enquiry conducted by Executive Engineer, StateVigilance Bureau on the construction of these walls of village tank 9 bags of cement were not used which are shown in the account. During his tenure as Sarpanch from 1-8-1989 to 2-8-1990 he received 890 bags of cement while as per quality parameters of project cost only 774 bags of cement are used. Thus he has embezzled the cost of 103 bags of cement. In the same way while constructing village drainage and getting the school rooms plastered he has wrongly shown the use of 8 and 17 bags of cement respectively which are not at all used as per the quality parameters of project cost of this construction work. Thus in all he has misappropriated 137 bags of cement by showing their use in the account books though in fact they were not so used.
3. On the basis of the report submitted to the Superintendent of Police, Haryana State Vigilance Bureau, F.I.R. was lodged with Police Station, SVB Karnal. On the basis of this F.I.R., investigation was held and challan was submitted in the Court of Chief Judicial Magistrate, Karnal.
4. Accused-respondent raised an objection that as the State has submitted this challan without obtaining prior sanction under Section 197, Cr. P. C. he cannot be prosecuted for the alleged offence. By passing the impugned order, learned Chief Judicial Magistrate, Karnal has upheld the objection. While discharging the accused-respondent, learned Chief Judicial Magistrate has given opportunity to the prosecution to present the challan against accused respondent after obtaining appropriate sanction from the State Government under Section 197 of the Code.
5. Learned Assistant Advocate-General strongly submitted that first of all accused-respondent does not fall in the category of public servant, therefore, the question of obtaining prior sanction under Section 197 of the Code before prosecuting him does not arise.
6. Further relying on Shambhoo Nath Misra V/s. State of U. P., 1997 (2) RCR 539 : (1997 Cri LJ 2491) learned Assistant Advocate-General vehemently argued that from the F.I.R. it is evident that respondent-accused has fabricated Panchayat record and has misappropriated public funds. The commission of these offences was not part of his official duty. Therefore, for prosecuting respondent-accused for the said offences, prior sanction under Section 197(1) of the Code is not required.
7. Respondents learned counsel relying on K. S. Prabhakar V/s. M/s. Bhadra Sahakari Sakkar Karkana Niyamit, 1995 (2) All Cr LR 580 : (1995 Cri LJ 2289) and Jagdish Parshad V/s. Nathu Singh, 1994 (1) All Cr LR 633, contended that accused-respondent being ex-sarpanch was a public servant and he cannot be prosecuted without prior sanction under Section 197(1) of the Code. He also clarified that from the F.I.R. itself it is evident that whatever allegationss of embezzlement and misappropriation of public funds are against the accused-respondent those acts were committed by the accused-respondent in the discharge of his official duties. Therefore, there is no merit in this revision petition.
8. The first point for decision is whether respondent-accused is a public servant. Section 3(1) of the Punjab Gram Panchayat Act, 1952 (as applicable to Haryana) lays down that a Sarpanch is a public servant. Under Section 102 of the said Act, Sarpanch is removable from the office by the State Government
