CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 677 of 1680.
Appeal by Special leave from the Judgment and Order dated the 7th August, 1980 of the Jammu & Kashmir High Court in Criminal Revision No. 6 of 1979.
T.C. Mehta and Meera Agarwal for the Appellant.
Altaf Ahmed for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. In this appeal by special leave, the short question for consideration is, if sanction under section 197, Code of Criminal Procedure (’Code’ for short) is necessary for the prosecution of the appellant for an offence of cheating punishable under section 420 of the Indian Penal Code.
Appellant was Regional Officer of the Directorate of Field Publicity of the Government of India in 1972. He travelled by air from Srinagar to Delhi to and fro on one occasion and from Srinagar to Jammu to and fro on two other occasions by obtaining air tickets in lieu of exchange orders. The cost of the tickets obtained by the appellant was debitable to the account of the Directorate and under the rules the appellant was required to exclude the same from the bills for travelling allowance. On the allegation that the appellant submitted bills including the air fare and received payment for the same, a prosecution report was submitted against him for the offence of cheating under s. 420, I.P.C. in the Court of the Chief Judicial Magistrate of Srinagar. The appellant took the plea that in the absence of sanction under s. 197 of the Code, the prosecution was not maintainable. The trying Magistrate rejected the contention and the High Court upheld the order in a revision at the instance of the appellant.
Section 197 (1) of the Code provides:
"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 the 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 Central Government..."
Undoubtedly, the section is designed to facilitate an effective and unhampered performance of official duty by public servants by making provision for scrutiny into allegations against them by superior authorities and prior sanction for prosecution as a condition precedent to the cognizance of cases against them by courts so that protection may be available from frivolous, vexatious or false prosecutions for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. As pointed out by this Court in Srivastava v. Misra,(1) the umbrella of protection is available in respect of offences alleged to have been committed while acting or purporting to act in the discharge of official duty. It is the contention of the appellant that qua public officer the appellant submitted the impugned bills and has drawn the travelling allowance. According to him, the furnishing of the bills and the drawing of the allowance are integrally connected with his status of being a public servant and must, therefore, be taken to be covered by the two phrases occurring in sub-s. (1) of s. 197 of the Code.
We are of the view that the submission advanced on behalf of the appellant is totally without any basis and has to be rejected. The state of the law as laid down by this Court in several precedents may usefully be referred to in support of this conclusion. In Amrik Singh v. State of Pepsu,(1) the accused was a sub-Divisional Officer in the Public Works Department of Pepsu. It was a part of his duties to disburse the wages to workmen employed in certain works at a place called Karhali. The procedure usually followed was that he drew the amount required from the Treasury and disbursed the amount to the employees against their signatures or thumb impressions in the monthly acquittance roll. Payment was shown to have been made to one Parma for the month of April 1951. The Sub-Divisional Officer was prosecuted on the allegation that Parma was nonexistent and the thumb impression in the acquittance roll was of the accused himself. This had been done with a view to misappropriating the wages said to have been paid to the workman. Before a three Judge Bench of this Court on behalf of the appellant the conviction was challenged for want of sanction under s. 197 (1) of the Code in respect of the offences punishable under ss. 409 and 465 of the Penal Code. Referring to certain decided cases, Venkatarama Ayyar, J. spoke for the Court thus:
"The result of the authorities may thus be summed
up : It is not every offence committed by a public
servant that requires sanction for prosecution under
section 197 (1) of the Code of Criminal Procedure; nor
even every act done by him while he is actually engaged
in the performance of his official duties; but if the
act complained of is directly concerned with his
official duties so that, if questioned, it could be
claimed to have been done by virtue of the office, then
sanction would be necessary; and that would be so,
irrespective of whether it was, in fact, a proper
discharge of his duties, because that would really be a
matter of defence on the merits, which would have to be
investigated at the trial, and could not arise at the
stage of the grant of sanction, which must precede the
institution of the prosecution".
It was further said:
"In our judgment, even when the charge is one of
misappropriation by a public servant, whether sanction
is required under section 197 (1) will depend upon the
facts of each case. If the acts complained of are so
integrally connected with the duties attaching to the
office as to be inseparable from them, then sanction
under section 197 (1) would be necessary; but if there
was no necessary connection between them and the
performance of those duties, the official status
furnishing only the occasion or opportunity for the
acts, then no sanction would be required".
The conviction was set aside in that case on a finding that the preparation of the acquittance roll and the disbursement of the money were integrally connected with the official duties of the Sub-Divisional Officer, and without sanction the prosecution was not maintainable.
The question of sanction arose again in the case of K. Satwant Singh v. The State of Punjab,(1) and on this occasion before a Constitution Bench. Connected with the rehabilitation programme in Burma after the Japanes invasion during the Second World War, certain works were undertaken some to be executed by the Army and others were entrusted to contractors. The appellant was one of such contractors and claimed payment for work done and on his request payments were made through cheques which were encashed at Lahore. The Government of Burma looked into the claims again on account of suspicion and discovered that some of the claims were false and payment therefor was not due. The contractor was therefore, charged for an offence under s 420, I.P.C. and some of the officers connected with the payments were charged under s. 420/109, I.P.C. Imam, J. spoke for the Constitution Bench thus:
"Henderson was charged with intentionally aiding
the appellant in the Commission of an offence
punishable
under s. 420 of the Indian Penal Code by falsely
stating as a fact, in his reports that the appellant’s
claims were true and that statement had been made
knowing all the while that the claims in question were
false and fraudulent and that he had accordingly
committed an offence under s. 420/109, Indian Penal
Code. It appears to us to be clear that some offences
cannot by their very nature be regarded as having been
committed by public servants while acting or purporting
to act in the discharge of their official duty. For
instance, acceptance of a bribe, an offence punishable
under s. 161 of the Indian Penal Code, is one of them
and offence of cheating or abetment there of is
another. We have no hesitation in saying that where a
public servant commits the offence of cheating or abets
another so to cheat, the offence committed by him is
not one while he is acting or purporting to act in the
discharge of his official duty, as such offences have
no necessary connection between them and the
performance of the duties of a public servant the
official status furnishing only the occasion or
opportunity for the commission of the offences (vide
Amrik Singh’s case). The act of cheating or abetment
thereof has no reasonable connection with the discharge
of official duty. The act must bear such relation to
the duty that the public servant could lay a reasonable
but not a pretended or fanciful claim, that he did it
in the course of the performance of his duty".
(underlining is ours)
The Court held that the protection under s. 197 of the Code was not available.
The authority in Satwant Singh’s case has never been challenged in this Court and as the offence of cheating was involved therein, the ratio of the aforesaid case which is binding on us would have been ordinarily sufficient for the disposal of this appeal. We would, however, like to refer to some of the later decisions of this Court so that a full view of the judicial opinion on the question may be available.
In Baijnath Gupta & Ors. v. The State of Madhya Pradesh,(1) the Chief Accountant-cum-Office Superintendent in an Electric Supply Undertaking run by the Government of erstwhile State of Madhya Bharat was prosecuted for offences punishable under ss. 477A and 409, I.P.C. It was contended before this Court that the offences had been committed in the discharge of official duty and in the absence of prior sanction the conviction was not maintainable. The majority quoted with approval the following observations of Lord Simonds in Hori Ram Singh v. Emperor :(1)
"A public servant can only be said to act or to
purport to act in the discharge of his official duty,
if his act is such as to lie within the scope of his
official duty. Thus, a judge neither acts nor purports
to act as a judge in receiving a bribe, though the
judgment which he delivers may be such an act; nor does
a Government medical officer act or purport to act as a
public servant in picking the pocket of a patient whom
he is examining though the examination itself may be
such an act. The test may well be whether the public
servant, if challenged, can reasonably claim that, what
he does in virtue of his office.."
The Court proceeded to say:
"It is not every offence committed by public
servant that requires sanction for prosecution under s.
197 (1) of the Criminal Procedure Code; nor even every
act done by him while he is actually engaged in the
performance of his official duties; but if the act
complained of is directly concerned with his official
duties so that, if questioned, it could be claimed to
have been done by virtue of the office, then sanction
would be necessary. It is the quality of the act that
is important and if it falls within the scope and range
of his official duties the protection contemplated by
s. 197 of the Criminal Procedure Code will be
attracted. An offence may be entirely unconnected with
the official duty. Where it is unconnected with the
official duty there can be no protection. It is only
when it is either within the scope of the official duty
or in excess of it that the protection is claimable."
The facts of Bakhshish Singh Dhaliwal v. State of Punjab,(1) were similar to Satwant Singh’s case. Bakhshish Singh was also a contractor engaged in the rehabilitation work in Burma after the Second World War and on a similar set of allegations as in that case he was prosecuted along with public officers for the offence of cheating. The ratio in Satwant Singh’s case was quoted with full approval and sanction was held to be wholly unnecessary. It was held that the act of abetting the principal offenders could not possibly be held to have been done in the discharge of official duties as public servants. The question of sanction arose again for consideration in the case of Hairhar Prasad etc. v. State of Bihar,(2) in the backdrop of prosecution of six public servants for offences punishable under ss. 120A, 120B and 409 of the Indian Penal Code. The Court reiterated the dictum in Amrik Singh’s case (supra) where it had been said:
"It is not every offence committed by a public
servant that requires sanction for prosecution under s.
197 (1), Criminal Procedure Code; nor even every act
done by him while he is actually engaged in the
performance of his official duties; but if the act
complained of is directly concerned with his official
duties so that, if questioned, it would be claimed to
have been done by virtue of the office, then sanction
would be necessary".
Testing the facts on the basis of this dictum the Court came to the conclusion that want of sanction was no bar to the prosecution.
In B. Saha & Ors. v. M.S. Kochar,(3) a three Judge Bench dealt with the same submission advanced on behalf of certain officers of the Customs Department convicted for offences punishable under ss. 120B, 166 and 409 of the Penal Code. Sarkaria, J. speaking for the Court observed:
"In sum, the sine qua non for the applicability of
this section is that the offence charged, be it one of
commission or omission, must be one which has been
committed by the pubic servant either in his official
capacity or under colour of the office held by him"
The rule in Amrik Singh’s case was quoted with
approval.
It was observed:
"The words ’any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty’ employed in section
197 (1) of the Code, are capable of a narrow as well as
a wide interpretation. If these words are construed too
narrowly, the section will be rendered altogether
sterile, for, ’it is no part of an official duty to
commit an offence, and never can be’. In the wider
sense, these words will take under their umbrella every
act constituting an offence, committed in the course of
the same transaction in which the official duty is
performed or purports to be performed. The right
approach to the import of these words lies between
these two extremes. While on the one hand, it is not
every offence committed by a public servant while
engaged in the performance of his official duty, which
is entitled to the protection of section 197(1), an act
constituting an offence, directly and reasonably
connected with his official duty will require sanction
for prosecution under the said provision".
We are of the definite view that the rule quoted above from Amrik Singh’s case correctly lays down the legal proposition as to inovocability of the protection under s. 197 (1) of the Code. The observations of Imam, J. in Satwant Singh’s case that there could be no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the dischrage of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences, is also the correct exposition of the law. It has not been contended before us that official duty of the appellant was to draw travelling allowance bills though his status as a public servant authorised him to draw such bills. Drawing of T.A. bills cannot be said to have been directly and reasonably connected with appellants duty as Regional Officer of the Directorate and the official status furnished the opportunity for doing the acts which constitute ingredients of the offence. He was, therefore, not entitled to claim the protection of s. 197 (1) of the Code. The prosecution is not vitiated for want of sanction. The appeal has, therefore, to be dismissed.
The prosecution was laid about 8 years back and on the plea of want of sanction the matter has been dragged on for such a long time at different stages. We, therefore, direct that the trial court shall proceed to conclude the trial expeditiously in accordance with law. H.S.K. Appeal dismissed.