A survey of the precedents makes it absolutely clear
that there has to be reasonable connection between the
omission or commission and the discharge of official duty or
the act committed was under the colour of the office held by
the official. If the acts omission or commission is totally
alien to the discharge of the official duty, question of
invoking Section 197 CrPC does not arise. We have already
reproduced few passages from the impugned order from
which it is discernible that to arrive at the said conclusion
the learned Single Judge has placed reliance on the
authority in B. Saha’s (supra). The conclusion is based on
the assumption that the allegation is that while being a
public servant, the alleged criminal breach of trust was
committed while he was in public service. Perhaps the
learned Judge has kept in his mind some kind of concept
relating to dereliction of duty. The issue was basically
entrustment and missing of the entrusted items. There is
no dispute that the prosecution had to prove the case. But
the public servant cannot put forth a plea that he was doing
the whole act as a public servant. Therefore, it is extremely
difficult to appreciate the reasoning of the High Court. As is
noticeable he has observed that under normal
circumstances the offences under Sections 467, 468 and
471 IPC may be of such nature that obtaining of sanction
under Section 197 CrPC is not necessary but when the said
offences are interlinked with an offence under Section 409
IPC sanction under Section 197 for launching the
prosecution for the offence under Section 409 is a condition
precedent. The approach and the analysis are absolutely
fallacious. We are afraid, though the High Court has
referred to all the relevant decisions in the field, yet, it has
erroneously applied the principle in an absolute fallacious
manner. No official can put forth a claim that breach of
trust is connected with his official duty. Be it noted the
three-Judge Bench in B. Saha (supra) has distinguished in
Shreekantiah Ramayya Munipalli (supra) keeping in view
the facts of the case. It had also treated the ratio in Amrik
Singh (supra) to be confined to its own peculiar facts. The
test to be applied, as has been stated by Chandrasekhara
Aiyar, J. in the Constitution Bench in Matajog Dube (supra)
which we have reproduced hereinbefore. The three-Judge
Bench in B. Saha (supra) applied the test laid down in
Gill’s case wherein Lord Simonds has reiterated that the
test may well be whether the public servant, if challenged,
can reasonably claim, that what he does, he does in virtue
of his office.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 159 OF 2016
(@ S.L.P.(Criminal) No. 3906 of 2012)
Punjab State Warehousing Corp.
Versus
Bhushan Chander & Anr.
Dated:June 29, 2016
Citation:(2016) 13 SCC 44
The singular question that has emanated in this
appeal, by special leave, is whether the High Court has
correctly accepted the submission advanced on behalf of the
first respondent, who was convicted for offences punishable
under Section 409/467/468/471 of the Indian Penal Code,
1860 (for short, ‘IPC’) and had been awarded sentence for
each of the offences with the stipulation that they would run
concurrently, that he being an employee of the appellantPage 2
Corporation is a public servant and the trial had
commenced without obtaining sanction under Section 197
of the Code of Criminal Procedure, 1973 (CrPC) and hence,
the trial in entirety was invalid and as a result the
conviction and sentence deserved to be set aside.
2. As far as the factual narration is concerned, suffice it
to state that the Managing Director of the Corporation had
written a letter on 28.6.1989 to the concerned police
authority to register a case against the first respondent for
offences punishable under Sections 409/467/468 and 471
of the IPC or any other appropriate provision of law. During
investigation, the investigating agency found that the
accused who was working as a Godown Assistant in the
Corporation had misappropriated 11 gunny bales value of
which was Rs.38,841/-; that he had tampered with the
record of the department; and accordingly the police
authorities filed the charge-sheet for the aforesaid offences
before the court of competent Judicial Magistrate. The
learned Magistrate on the basis of evidence brought on
record, found that the prosecution had been able to bring
home the guilt against the accused and accordingly
2Page 3
sentenced him to suffer rigorous imprisonment for three
years under Section 467 and 409 IPC and two years under
Section 468/471 IPC with separate default clauses. The
judgment of conviction and order of sentence was assailed
in appeal before the learned Session Judge, Firozpur and
the matter was finally heard by the learned Additional
Session Judge, who appreciating the evidence on record,
concurred with the conviction but modified the sentence of
three years imposed under Section 409 and 467 IPC to two
years.
3. Being dissatisfied, the first respondent preferred
Criminal Revision No. 359/2001 in the High Court of
Punjab and Haryana at Chandigarh. Before the revisional
court, the only contention that was raised pertained to
non-obtaining of sanction under Section 197 CrPC. It was
argued before the learned Single Judge that in view of the
decisions in State of Maharashtra v. Dr. Budhikota
Subbarao1
, Rakesh Kumar Mishra v. State of Bihar and
others2
, Sankaran Moitra v. Sadhna Das and another3
,
1
(1993) 3 SCC 339
2
(2006) 1 SCC (Cri) 432
3
(2006) 2 SCC (Cri) 358
3Page 4
Om Kumar Dhankar v. State of Haryana4
, the requisite
sanction having not been obtained, the trial was vitiated.
On behalf of the Corporation as well as the State of Punjab,
it was argued that the sanction under Section 197 CrPC
was not necessary to prosecute the first respondent and to
substantiate the said stand, reliance was placed on Dr.
Lakshmansingh Himatsingh Vaghela v. Naresh Kumar
Chadrrashanker Jah5
, N. Bhargavan Pillai (dead) by
Lrs. and another v. State of Kerala6
, State of U.P. v.
Paras Nath Singh7
, Raghunath Anant Govilkar v. State
of Maharashtra8
and Choudhury Parveen Sultana v.
State of West Bengal9
.
4. The learned Single Judge referred to the charges
framed under Section 409 and 467 IPC. He also referred to
the authorities in Prakash Singh Badal v. State of
Punjab10
, Nirmal Singh Kahlon v. State of Punjab11
, Om
Kumar Dhankar (supra) and Bakshish Singh Brar v.
4
(2007) 3 RCR (Criminal) 496 :
5
(1990) 4 SCC 169
6
(2004) 2 Cri. CC 575
7
(2009) 6 SCC 372
8
(2008) 11 SCC 289
9
(2009) 3 SCC 398
10 (2007) 1 RCR (Criminal) 1
11 (2008) 2 RCR (Criminal) 208
4Page 5
Gurmel Kaur12 and analyzing Section 197 CrPC observed
that the said provision is meant to protect responsible
public servants against the institution of vexatious criminal
proceedings for offences alleged to have been committed by
them. The learned Single Judge referred to P. Arulswami
v. State of Madras13
, Matajog Dube v. H.C. Bahri14
, P.K.
Pradhan v. State of Sikkim15, reproduced a passage from
B. Saha v. M.S. Kochar16, and came to hold as follows:-
“So far as the commission of offence in this case
is concerned, the very allegation would clearly
reveal that it is not a case where the allegations
are in any other capacity than a public servant.
The allegation against the petitioner is that while
being a public servant, he had committed a
criminal breach of trust. It is only in the
performance of the official duty that the
petitioner is alleged to have been found with
certain deficiencies for which allegation of
criminal breach of trust as well has been made
against him. Certainly the facts in this case are
inextricably mingled with the official duty of the
petitioner to be considered severable to call for
dispensing with the requirement of sanction”.
12 1988 (1) RCR (Criminal) 35
13 AIR 1967 SC 776
14 AIR 1956 SC 44
15 2001 (3) RCR (Cri.) 835 (SC)
16 (1979) 4 SCC 177
5Page 6
5. After so stating, the revisional court distinguished the
decision in Paras Nath Singh (supra) which was relied
upon by the prosecution by stating thus:-
“The aggrieved person in the said case has faced
trial for alleged commission of the offences
punishable under Section 409, 420, 461 and 468
IPC. The Supreme Court in this case has drawn
difference between the official duty and doing
something by public servant in the course of his
service. It is observed that the section does not
extend its protective cover to act or omission
done by a public servant in service, but restricts
its scope of operation to only those acts or
omissions, which are done by a public servant in
discharge of official duty. Even this observation
of the Hon’ble Supreme Court would fully apply
to the facts of the present case. Here, the
petitioner is alleged to have committed this
offence not only as a public servant but is stated
to have done so in discharge of his official duty.
In discharge of his official duty, the petitioner
was required to protect stock, which he failed to
do so and so he is asked to account for the
same”.
6. The eventual conclusion recorded by the learned
Single Judge is to the following effect:-
“Under normal circumstances, the offence under
Sections 467/468/471 IPC may be of such a
nature that requirement of obtaining sanction
under Section 197 CrPC may not be called for.
The offences in this case have been
inter-connected with the main offence alleged
against the petitioner under Section 409 IPC and
it would clearly indicate that these offences could
6Page 7
not be separately treated or dealt with.
Requirement of obtaining sanction would be
needed for an offence under Section 409 IPC and
the same may not be separated from the
remaining offences”.
7. After so stating, the learned Single Judge ruled that
the Corporation is a fully government-owned and financed
by the State Government and, therefore, he is a public
servant as per the definition of Section 21 of IPC and,
therefore, his employment in the Corporation would confer
him the status of public servant for which sanction is
necessary. The revisional court has not adverted to any of
the aspects touching merits of the case and, therefore, we
refrain from entering into the said arena.
8. Section 197(1) and (2) CrPC which are relevant for the
present purpose are reproduced below:-
“197. Prosecution of Judges and public
servants.—(1) 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
save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013—
7Page 8
(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;
(b) 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 a State, of
the State Government:
Provided that where the alleged offence was
committed by a person referred to in clause
(b) during the period while a proclamation
issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause
(b) will apply as if for the expression ‘State
Government’ occurring therein, the
expression ‘Central Government’ were
substituted.
Explanation.—For the removal of doubts it is
hereby declared that no sanction shall be
required in case of a public servant accused
of any offence alleged to have been
committed under Section 166-A, Section
166-B, Section 354, Section 354-A, Section
354-B, Section 354-C, Section 354-D,
Section 370, Section 375, Section 376,
Section 376-A, Section 376-C, Section
376-D or Section 509 of the Indian Penal
Code (45 of 1860).
(2) No Court shall take cognizance of any
offence alleged to have been committed by any
member of the Armed Forces of the Union while
acting or purporting to act in the discharge of his
8Page 9
official duty, except with the previous sanction of
the Central Government.”
9. In Matajog Dube (supra), certain complaints were
alleged against the authorized officials on the ground that
the officials had committed offences punishable under
Sections 323, 341, 342 and 109 IPC. The officials were
arrayed as accused persons who were authorized to search
two premises in question. The trial Magistrate discharged
the accused persons for want of sanction under Section 197
CrPC. Similar order was passed by another trial Magistrate.
Both the orders were concurred with by the High Court. Be
it noted two cases had arisen as two complaints were filed.
It was contended before this Court that the act of criminal
assault or wrongful confinement can never be regarded as
act done while acting or purporting to act in the discharge
of official duty and that duty is clearly defined in the
statute. The Constitution Bench referred to two decisions of
the Federal Court and the decisions of this Court in
Shreekantiah Ramayya Munipalli v. State of Bombay17
17 AIR 1955 SC 287
9Page 10
and Amrik Singh v. State of Pepsu18 and analyzing the
earlier authorities opined that:-
“The result of foregoing discussion is this: There
must be a reasonable connection between the act
and the discharge of official duty; the act must
bear such relation to the duty that the accused
could lay a reasonable but not a pretended or
fanciful claim, that he did it in the course of the
performance of his duty”.
10. Thereafter, the Court adverted to the determination of
need of sanction and the relevant stage. We are not
concerned with the said aspects in the present case.
11. In Arulswami (supra), the President of a Panchayat
Board was convicted under Section 409 IPC by the High
Court which had overturned the decision of the lower court.
It was argued before the High Court that the prosecution
was not maintainable for want of sanction by the State
Government under Section 106 of the Madras Village
Panchayats Act (Madras Act X of 1950). The High Court
held that no sanction of the Government was necessary as
the appellant had ceased to hold the office of the President,
when the prosecution was launched and further that the
18 AIR 1955 SC 309
10Page 11
sanction of the Collector was sufficient in law. That apart,
this Court posed the question whether the sanction of the
Government under Section 106 of the Madras Act was
necessary for the prosecution of the appellant for the
offence under Section 409 IPC. To appreciate the
contention raised, the Court referred to Section 197 CrPC.
The three-Judge Bench referred to the decisions in Hori
Ram Singh v. Emperor19 and H.H.B. Gill v. The King20
.
The three-Judge Bench quoted the observations of Lord
Simonds made in H.H.B. Gill (supra) in approving the
statement of law made in Hori Ram Singh (supra). The
Court also took note of the fact that the decision in H.H.B.
Gill (supra) had been approved in Albert West Meads v.
The King21
, Phanindra Chandra v. The King22 and R. W.
Mathams v. State of West Bengal23 and eventually held:-
“It is not therefore every offence committed by a
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
19 1939 FCR 159 (AIR 1939 FC 43)
20 1948 FCR 19 : (AIR 1948 PC 128)
21 AIR 1948 PC 156
22 AIR 1949 PC 117
23 AIR 1954 SC 455
11Page 12
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 office may
be entirely unconnected with the official duty as
such or it may be committed within the scope of
the official duty. Where it is unconnected with
the official duty there can be no protection”.
12. The Court while arriving at the said conclusion also
placed reliance on Om Prakash Gupta v. State of U.P.24
and ultimately came to hold that the sanction of the
Government is not necessary for prosecution of the accused
under Section 409 IPC.
13. The aforesaid two authorities make it clear that no
sanction is needed to launch the prosecution for the offence
punishable under Section 409 IPC. As we notice from the
impugned judgment, the learned Single Judge has been
swayed away by what has been stated in B. Saha (supra).
In the said case, the appellants had sought discharge on
the ground that cognizance of the complaint had been taken
without obtaining sanction under Section 197 CrPC and
Section 155 of the Customs Act, 1962. The Magistrate had
accepted the objection relying on the decision in
24 AIR 1957 SC 458
12Page 13
Shreekantiah Ramayya Munipalli (supra). The said
order was challenged by the complainant before the High
Court and the learned Single Judge, after elaborate
discussion opined that no sanction was required for the
prosecution of the accused-appellants for the offence under
Sections 120-B/409 IPC because they were certainly not
acting in the discharge of their official duties, when they
misappropriated the goods. The three-Judge Bench
analyzing the ambit and scope of Section 197 CrPC opined
that 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 the
said 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”. The Court
proceeded to observe that in the wider sense, the said 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 and the right approach to the import of these
13Page 14
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. The Court referred to the
observations of Ramaswami, J., in Baijnath v. State of
M.P.
25, which is to the following effect:-
“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 Section
197 of the Criminal Procedure Code will be
attracted”.
After so stating, the Court held that 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 public servant either in
his official capacity or under colour of the office held by
him.
14. The Court thereafter observed that whether an offence
had been committed in the course of official duty or not,
25 AIR 1966 SC 220
14Page 15
color of office cannot be answered hypothetically and would
depend on the facts of each case. The Court referred to the
decisions in Hori Ram Singh (supra) and the observations
made in Gill’s case for the purpose of appreciating what
should be the broad test. The Court reproduced a passage
from the Constitution Bench in Matajog Dube (supra)
which states about reasonable connection between the act
and the discharge of official duty, and that the act must
bear such relation to the duty that the accused could lay a
reasonable but not a pretended or fanciful claim, that he
did it in the course of the performance of his duty. We have
ingeminated the same, though we had earlier reproduced
the same.
15. After so stating, the Court adverted to the facts. The
Court noticed that the fact complained of is dishonest
misappropriation for conversion of the goods by the
appellants which they had seized, and as such, were
holding in trust to be dealt with in accordance with law.
The Court opined there can be no dispute that the seizure
of the goods by the appellants being entrusted with the
goods or dominion over them was an act committed by them
15Page 16
while acting in the discharge of their official duty, but the
act complained of subsequent dishonest misappropriation
or conversion of those goods by the appellants, which is the
second necessary element of the offence of criminal breach
of trust under Section 409 IPC, and hence, it could not be
said that the act was committed in the course of
performance of their official duty. It was observed by the
Court that there was nothing in the nature or quality of the
act complained of which attaches to or partakes the official
character of the appellants who allegedly did it nor could
the alleged act of misappropriation or conversion reasonably
said to be imbued with the color of the office held by the
appellants. The Court referred to the test in Hori Ram
Singh (supra) and thereafter stated thus:-
“This, however, should not be understood as an
invariable proposition of law. The question, as
already explained, depends on the facts of each
case. Cases are conceivable where on their
special facts it can be said that the act of
criminal misappropriation or conversion
complained of is inseparably intertwined with the
performance of the official duty of the accused
and therefore, sanction under Section 197(1) of
the Code of Criminal Procedure for prosecution of
the accused for an offence under Section 409,
Indian Penal Code was necessary”.
16Page 17
16. The three-Judge Bench distinguished the decision in
Shreekantiah Ramayya Munipalli (supra) and also
Amrik Singh (supra). The ultimate conclusion of the Court
reads thus:-
“There are several decisions of this Court, such
as, Om Prakash Gupta v. State of U.P.; Baijnath v.
State of M.P. (supra) and Harihar Prasad v. State
of Bihar26, wherein it has been held that sanction
under Section 197, Criminal Procedure Code for
prosecution for an offence under Section 409,
Indian Penal Code was not necessary. In Om
Prakash Gupta case (supra) it was held that a
public servant committing criminal breach of
trust does not normally act in his capacity as a
public servant. Since this rule is pot absolute,
the question being dependent on the facts of each
case, we do not think it necessary to burden this
judgment with a survey of all those cases”.
On the aforesaid analysis, the appeal was dismissed.
We will advert to the appreciation of the ratio of the
aforesaid decision by the learned Single Judge after we take
note of certain other authorities.
17. In State of Maharashtra v. Dr. Budhilota
Subbarao27, the Court referred to the authority in B. Saha
(supra), Arulswami (supra) and stated that the concept of
sanction has been widened by extending protection to even
26 (1972) 3 SCC 89
27 (1993) 3 SCC 339
17Page 18
those acts or omissions which are done in purported
exercise of official duty and that is under the colour of
office. Proceeding further, the Court stated that official
duty implies that the act or omission must have been done
by the public servant in course of his service and such act
or omission must have been performed as a part of duty
which further must have been official in nature. As has
been stated by the Court, the provision has to be construed
strictly while determining its applicability to any act or
omission in course of service and its operation has to be
limited to those duties which are discharged in course of
duty. It has been held that:-
“But once it is established that act or omission
was done by the public servant while discharging
his duty then the scope of its being official should
be construed so as to advance the objective of the
section in favour of the public servant. Otherwise
the entire purpose of affording protection to a
public servant without sanction shall stand
frustrated. For instance a police officer in
discharge of duty may have to use force which
may be an offence for the prosecution of which
the sanction may be necessary”.
18. The facts in the said case are absolutely different but
we have only referred to the said authority to appreciate
18Page 19
that it has reiterated the principle that an act must bear a
relation to the duty that the accused could lay a reasonable
claim that the act has been in exercise of official duty or
duty that has been done has the colour of office.
19. In Shambhoo Nath Misra v. State of U.P.28, a private
complaint was filed by the appellant therein against the
second respondent for the offences punishable under
Sections 409, 420, 465, 468, 477-A and 109 IPC. The
learned Magistrate had dismissed the complaint holding
that sanction under Section 197 CrPC was not obtained.
The High Court accepted the view of the learned Magistrate.
Be it stated, the learned Judge had relied upon the
judgment of Hori Ram Singh (supra), B. Saha (supra) and
Gill’s case. The Court observed that the requirement of the
sanction by competent authority or appropriate Government
is an assurance and protection to the honest officer who
does his official duty to further public interest. However,
performance of official duty under colour of public authority
cannot be camouflaged to commit crime. The Court further
stated that to proceed further in the trial or the enquiry, as
28 (1997) 5 SCC 326
19Page 20
the case may be, it has to apply its mind and record a
finding that the crime and the official duty are not integrally
connected.
20. Thereafter, the Court held:-
“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”.
Being of this view, the Court allowed the appeal and
set aside the order of the Magistrate and directed
restoration of the complaint.
21. In State of Kerala v. V. Padmanabhan Nair29 it has
been held that when no sanction under Section 197 is
necessary for taking cognizance in respect of the offences
under Section 406 and Section 409 read with Section 120-B
IPC. Similar principle has been laid down in State of H.P.
29 (1999) 5 SCC 690
20Page 21
v. M.P. Gupta30. In Parkash Singh Badal and another v.
State of Punjab and others31 it has been ruled that the
offence of cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and 120-B can
by no stretch of imagination by their very nature be
regarded as having been committed by any public servant
while acting or purporting to act in discharge of official
duty. In such cases, official status only provides an
opportunity for commission of the offence. Similar principle
has been reiterated in Choudhury Parveen Sultana v.
State of West Bengal and another32 wherein the Court
referred to the authority in Bhagwan Prasad Srivastava
v. N.P. Mishra33 and ruled thus:-
“12. It was also observed in Bhagwan Prasad
Srivastava (supra) that Section 197 has been
designed to facilitate effective and unhampered
performance of their official duty by public
servants by providing for scrutiny into the
allegations of commission of offence by them
by their superior authorities and prior sanction
for their prosecution was a condition precedent
to the taking of cognizance of the cases against
them by the courts. It was finally observed that
the question whether a particular act is done
by a public servant in the discharge of his
30 (2004) 2 SCC 349
31 (2007) 1 SCC 1
32 (2009) 3 SCC 398
33 (1970) 2 SCC 56
official duties is substantially one of the facts
to be determined in the circumstances of each
case.”
22. A survey of the precedents makes it absolutely clear
that there has to be reasonable connection between the
omission or commission and the discharge of official duty or
the act committed was under the colour of the office held by
the official. If the acts omission or commission is totally
alien to the discharge of the official duty, question of
invoking Section 197 CrPC does not arise. We have already
reproduced few passages from the impugned order from
which it is discernible that to arrive at the said conclusion
the learned Single Judge has placed reliance on the
authority in B. Saha’s (supra). The conclusion is based on
the assumption that the allegation is that while being a
public servant, the alleged criminal breach of trust was
committed while he was in public service. Perhaps the
learned Judge has kept in his mind some kind of concept
relating to dereliction of duty. The issue was basically
entrustment and missing of the entrusted items. There is
no dispute that the prosecution had to prove the case. But
the public servant cannot put forth a plea that he was doing
the whole act as a public servant. Therefore, it is extremely
difficult to appreciate the reasoning of the High Court. As is
noticeable he has observed that under normal
circumstances the offences under Sections 467, 468 and
471 IPC may be of such nature that obtaining of sanction
under Section 197 CrPC is not necessary but when the said
offences are interlinked with an offence under Section 409
IPC sanction under Section 197 for launching the
prosecution for the offence under Section 409 is a condition
precedent. The approach and the analysis are absolutely
fallacious. We are afraid, though the High Court has
referred to all the relevant decisions in the field, yet, it has
erroneously applied the principle in an absolute fallacious
manner. No official can put forth a claim that breach of
trust is connected with his official duty. Be it noted the
three-Judge Bench in B. Saha (supra) has distinguished in
Shreekantiah Ramayya Munipalli (supra) keeping in view
the facts of the case. It had also treated the ratio in Amrik
Singh (supra) to be confined to its own peculiar facts. The
test to be applied, as has been stated by Chandrasekhara
Aiyar, J. in the Constitution Bench in Matajog Dube (supra)
which we have reproduced hereinbefore. The three-Judge
Bench in B. Saha (supra) applied the test laid down in
Gill’s case wherein Lord Simonds has reiterated that the
test may well be whether the public servant, if challenged,
can reasonably claim, that what he does, he does in virtue
of his office.
23. Tested on the touchstone of said principles, it cannot
be said that in the obtaining factual matrix, sanction under
Section 197 CrPC was necessary. We are compelled to
observe that the High Court should have been more vigilant
in understanding the ratio of the decisions of this Court.
24. Another line of argument was advanced on behalf of
the appellant-Corporation that even if the respondents are
treated as public servants, they being the employees of the
Corporation, they do not get the protective shelter of Section
197 CrPC. In Lakshmansingh Himatsingh Vaghela
(supra), a three-Judge Bench dissecting the anatomy of
Section 197(1) CrPC opined that the said provision clearly
intends to draw a line between public servants and to
provide that only in the case of the higher ranks should the
sanction of the government to their prosecution be
necessary. While a public servant holding an office of the
kind mentioned in the section is as such public servant
appointed to another office, his official acts in connection
with the latter office will also relate to the former office.
Thereafter, the Court ruled:-
“The words “removable from office” occurring in
Section 197 signify removal from the office he is
holding. The authority mentioned in the section
is the authority under which the officer is serving
and competent to terminate his services. If the
accused is under the service and pay of the local
authority, the appointment to an office for
exercising functions under a particular statute
will not alter his status as an employee of the
local authority”.
25. In the said case, the appellant was admittedly a
laboratory official in the service and pay of Municipal
Corporation of Ahmedabad. His appointment as Public
Analyst by the Government, as held by this Court, did not
confer him the status of a public servant or an officer under
service and pay of the Government. Being of this view, the
Court opined he was not a public servant removable only by
the State Government and accordingly allowed the appeal.
26. In Md. Hadi Raja v. State of Bihar34 the question
arose whether Section 197 CrPC was applicable for
34 AIR 1998 SC 1945
prosecuting officers of the public sector undertakings or the
Government companies which can be treated as State
within the meaning of Article 12 of the Constitution of India.
The Court referred to Section 197 CrPC, noted the
submissions and eventually held that the protection by way
of sanction under Section 197 CrPC is not applicable to the
officers of Government Companies or the public
undertakings even when such public undertakings are
‘State’ within the meaning of Article 12 of the Constitution
on account of deep and pervasive control of the government.
27. The High Court has not accepted the submission of
the Corporation in this regard. We are constrained to note
that the decision in Md. Hadi Raja (supra) has been
referred to in the grounds in this appeal. There is nothing
on record to suggest that the said decision was cited before
the High Court. It has come to our notice on many an
occasion that the relevant precedents are not cited by the
Corporations and the government undertakings before the
High Court. We should, as advised at present, only say that
a concerted effort should be made in that regard so that a
stitch in time can save nine.
28. In view of the aforesaid analysis, the irresistible
conclusion is that the respondents are not entitled to have
the protective umbrella of Section 197 CrPC and, therefore,
the High Court has erred in setting aside the conviction and
sentence on the ground that the trial is vitiated in the
absence of sanction. Consequently, we allow the appeal
and set aside the judgment and order passed by the High
Court and remit the matter to the High Court to decide the
revision petition in accordance with law.
...............................J.
[Dipak Misra]
...............................J.
New Delhi, [Shiva Kirti Singh]
June 29, 2016
Print Page
that there has to be reasonable connection between the
omission or commission and the discharge of official duty or
the act committed was under the colour of the office held by
the official. If the acts omission or commission is totally
alien to the discharge of the official duty, question of
invoking Section 197 CrPC does not arise. We have already
reproduced few passages from the impugned order from
which it is discernible that to arrive at the said conclusion
the learned Single Judge has placed reliance on the
authority in B. Saha’s (supra). The conclusion is based on
the assumption that the allegation is that while being a
public servant, the alleged criminal breach of trust was
committed while he was in public service. Perhaps the
learned Judge has kept in his mind some kind of concept
relating to dereliction of duty. The issue was basically
entrustment and missing of the entrusted items. There is
no dispute that the prosecution had to prove the case. But
the public servant cannot put forth a plea that he was doing
the whole act as a public servant. Therefore, it is extremely
difficult to appreciate the reasoning of the High Court. As is
noticeable he has observed that under normal
circumstances the offences under Sections 467, 468 and
471 IPC may be of such nature that obtaining of sanction
under Section 197 CrPC is not necessary but when the said
offences are interlinked with an offence under Section 409
IPC sanction under Section 197 for launching the
prosecution for the offence under Section 409 is a condition
precedent. The approach and the analysis are absolutely
fallacious. We are afraid, though the High Court has
referred to all the relevant decisions in the field, yet, it has
erroneously applied the principle in an absolute fallacious
manner. No official can put forth a claim that breach of
trust is connected with his official duty. Be it noted the
three-Judge Bench in B. Saha (supra) has distinguished in
Shreekantiah Ramayya Munipalli (supra) keeping in view
the facts of the case. It had also treated the ratio in Amrik
Singh (supra) to be confined to its own peculiar facts. The
test to be applied, as has been stated by Chandrasekhara
Aiyar, J. in the Constitution Bench in Matajog Dube (supra)
which we have reproduced hereinbefore. The three-Judge
Bench in B. Saha (supra) applied the test laid down in
Gill’s case wherein Lord Simonds has reiterated that the
test may well be whether the public servant, if challenged,
can reasonably claim, that what he does, he does in virtue
of his office.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 159 OF 2016
(@ S.L.P.(Criminal) No. 3906 of 2012)
Punjab State Warehousing Corp.
Versus
Bhushan Chander & Anr.
Dated:June 29, 2016
Citation:(2016) 13 SCC 44
appeal, by special leave, is whether the High Court has
correctly accepted the submission advanced on behalf of the
first respondent, who was convicted for offences punishable
under Section 409/467/468/471 of the Indian Penal Code,
1860 (for short, ‘IPC’) and had been awarded sentence for
each of the offences with the stipulation that they would run
concurrently, that he being an employee of the appellantPage 2
Corporation is a public servant and the trial had
commenced without obtaining sanction under Section 197
of the Code of Criminal Procedure, 1973 (CrPC) and hence,
the trial in entirety was invalid and as a result the
conviction and sentence deserved to be set aside.
2. As far as the factual narration is concerned, suffice it
to state that the Managing Director of the Corporation had
written a letter on 28.6.1989 to the concerned police
authority to register a case against the first respondent for
offences punishable under Sections 409/467/468 and 471
of the IPC or any other appropriate provision of law. During
investigation, the investigating agency found that the
accused who was working as a Godown Assistant in the
Corporation had misappropriated 11 gunny bales value of
which was Rs.38,841/-; that he had tampered with the
record of the department; and accordingly the police
authorities filed the charge-sheet for the aforesaid offences
before the court of competent Judicial Magistrate. The
learned Magistrate on the basis of evidence brought on
record, found that the prosecution had been able to bring
home the guilt against the accused and accordingly
2Page 3
sentenced him to suffer rigorous imprisonment for three
years under Section 467 and 409 IPC and two years under
Section 468/471 IPC with separate default clauses. The
judgment of conviction and order of sentence was assailed
in appeal before the learned Session Judge, Firozpur and
the matter was finally heard by the learned Additional
Session Judge, who appreciating the evidence on record,
concurred with the conviction but modified the sentence of
three years imposed under Section 409 and 467 IPC to two
years.
3. Being dissatisfied, the first respondent preferred
Criminal Revision No. 359/2001 in the High Court of
Punjab and Haryana at Chandigarh. Before the revisional
court, the only contention that was raised pertained to
non-obtaining of sanction under Section 197 CrPC. It was
argued before the learned Single Judge that in view of the
decisions in State of Maharashtra v. Dr. Budhikota
Subbarao1
, Rakesh Kumar Mishra v. State of Bihar and
others2
, Sankaran Moitra v. Sadhna Das and another3
,
1
(1993) 3 SCC 339
2
(2006) 1 SCC (Cri) 432
3
(2006) 2 SCC (Cri) 358
3Page 4
Om Kumar Dhankar v. State of Haryana4
, the requisite
sanction having not been obtained, the trial was vitiated.
On behalf of the Corporation as well as the State of Punjab,
it was argued that the sanction under Section 197 CrPC
was not necessary to prosecute the first respondent and to
substantiate the said stand, reliance was placed on Dr.
Lakshmansingh Himatsingh Vaghela v. Naresh Kumar
Chadrrashanker Jah5
, N. Bhargavan Pillai (dead) by
Lrs. and another v. State of Kerala6
, State of U.P. v.
Paras Nath Singh7
, Raghunath Anant Govilkar v. State
of Maharashtra8
and Choudhury Parveen Sultana v.
State of West Bengal9
.
4. The learned Single Judge referred to the charges
framed under Section 409 and 467 IPC. He also referred to
the authorities in Prakash Singh Badal v. State of
Punjab10
, Nirmal Singh Kahlon v. State of Punjab11
, Om
Kumar Dhankar (supra) and Bakshish Singh Brar v.
4
(2007) 3 RCR (Criminal) 496 :
5
(1990) 4 SCC 169
6
(2004) 2 Cri. CC 575
7
(2009) 6 SCC 372
8
(2008) 11 SCC 289
9
(2009) 3 SCC 398
10 (2007) 1 RCR (Criminal) 1
11 (2008) 2 RCR (Criminal) 208
4Page 5
Gurmel Kaur12 and analyzing Section 197 CrPC observed
that the said provision is meant to protect responsible
public servants against the institution of vexatious criminal
proceedings for offences alleged to have been committed by
them. The learned Single Judge referred to P. Arulswami
v. State of Madras13
, Matajog Dube v. H.C. Bahri14
, P.K.
Pradhan v. State of Sikkim15, reproduced a passage from
B. Saha v. M.S. Kochar16, and came to hold as follows:-
“So far as the commission of offence in this case
is concerned, the very allegation would clearly
reveal that it is not a case where the allegations
are in any other capacity than a public servant.
The allegation against the petitioner is that while
being a public servant, he had committed a
criminal breach of trust. It is only in the
performance of the official duty that the
petitioner is alleged to have been found with
certain deficiencies for which allegation of
criminal breach of trust as well has been made
against him. Certainly the facts in this case are
inextricably mingled with the official duty of the
petitioner to be considered severable to call for
dispensing with the requirement of sanction”.
12 1988 (1) RCR (Criminal) 35
13 AIR 1967 SC 776
14 AIR 1956 SC 44
15 2001 (3) RCR (Cri.) 835 (SC)
16 (1979) 4 SCC 177
5Page 6
5. After so stating, the revisional court distinguished the
decision in Paras Nath Singh (supra) which was relied
upon by the prosecution by stating thus:-
“The aggrieved person in the said case has faced
trial for alleged commission of the offences
punishable under Section 409, 420, 461 and 468
IPC. The Supreme Court in this case has drawn
difference between the official duty and doing
something by public servant in the course of his
service. It is observed that the section does not
extend its protective cover to act or omission
done by a public servant in service, but restricts
its scope of operation to only those acts or
omissions, which are done by a public servant in
discharge of official duty. Even this observation
of the Hon’ble Supreme Court would fully apply
to the facts of the present case. Here, the
petitioner is alleged to have committed this
offence not only as a public servant but is stated
to have done so in discharge of his official duty.
In discharge of his official duty, the petitioner
was required to protect stock, which he failed to
do so and so he is asked to account for the
same”.
6. The eventual conclusion recorded by the learned
Single Judge is to the following effect:-
“Under normal circumstances, the offence under
Sections 467/468/471 IPC may be of such a
nature that requirement of obtaining sanction
under Section 197 CrPC may not be called for.
The offences in this case have been
inter-connected with the main offence alleged
against the petitioner under Section 409 IPC and
it would clearly indicate that these offences could
6Page 7
not be separately treated or dealt with.
Requirement of obtaining sanction would be
needed for an offence under Section 409 IPC and
the same may not be separated from the
remaining offences”.
7. After so stating, the learned Single Judge ruled that
the Corporation is a fully government-owned and financed
by the State Government and, therefore, he is a public
servant as per the definition of Section 21 of IPC and,
therefore, his employment in the Corporation would confer
him the status of public servant for which sanction is
necessary. The revisional court has not adverted to any of
the aspects touching merits of the case and, therefore, we
refrain from entering into the said arena.
8. Section 197(1) and (2) CrPC which are relevant for the
present purpose are reproduced below:-
“197. Prosecution of Judges and public
servants.—(1) 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
save as otherwise provided in the Lokpal and
Lokayuktas Act, 2013—
7Page 8
(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;
(b) 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 a State, of
the State Government:
Provided that where the alleged offence was
committed by a person referred to in clause
(b) during the period while a proclamation
issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause
(b) will apply as if for the expression ‘State
Government’ occurring therein, the
expression ‘Central Government’ were
substituted.
Explanation.—For the removal of doubts it is
hereby declared that no sanction shall be
required in case of a public servant accused
of any offence alleged to have been
committed under Section 166-A, Section
166-B, Section 354, Section 354-A, Section
354-B, Section 354-C, Section 354-D,
Section 370, Section 375, Section 376,
Section 376-A, Section 376-C, Section
376-D or Section 509 of the Indian Penal
Code (45 of 1860).
(2) No Court shall take cognizance of any
offence alleged to have been committed by any
member of the Armed Forces of the Union while
acting or purporting to act in the discharge of his
8Page 9
official duty, except with the previous sanction of
the Central Government.”
9. In Matajog Dube (supra), certain complaints were
alleged against the authorized officials on the ground that
the officials had committed offences punishable under
Sections 323, 341, 342 and 109 IPC. The officials were
arrayed as accused persons who were authorized to search
two premises in question. The trial Magistrate discharged
the accused persons for want of sanction under Section 197
CrPC. Similar order was passed by another trial Magistrate.
Both the orders were concurred with by the High Court. Be
it noted two cases had arisen as two complaints were filed.
It was contended before this Court that the act of criminal
assault or wrongful confinement can never be regarded as
act done while acting or purporting to act in the discharge
of official duty and that duty is clearly defined in the
statute. The Constitution Bench referred to two decisions of
the Federal Court and the decisions of this Court in
Shreekantiah Ramayya Munipalli v. State of Bombay17
17 AIR 1955 SC 287
9Page 10
and Amrik Singh v. State of Pepsu18 and analyzing the
earlier authorities opined that:-
“The result of foregoing discussion is this: There
must be a reasonable connection between the act
and the discharge of official duty; the act must
bear such relation to the duty that the accused
could lay a reasonable but not a pretended or
fanciful claim, that he did it in the course of the
performance of his duty”.
10. Thereafter, the Court adverted to the determination of
need of sanction and the relevant stage. We are not
concerned with the said aspects in the present case.
11. In Arulswami (supra), the President of a Panchayat
Board was convicted under Section 409 IPC by the High
Court which had overturned the decision of the lower court.
It was argued before the High Court that the prosecution
was not maintainable for want of sanction by the State
Government under Section 106 of the Madras Village
Panchayats Act (Madras Act X of 1950). The High Court
held that no sanction of the Government was necessary as
the appellant had ceased to hold the office of the President,
when the prosecution was launched and further that the
18 AIR 1955 SC 309
10Page 11
sanction of the Collector was sufficient in law. That apart,
this Court posed the question whether the sanction of the
Government under Section 106 of the Madras Act was
necessary for the prosecution of the appellant for the
offence under Section 409 IPC. To appreciate the
contention raised, the Court referred to Section 197 CrPC.
The three-Judge Bench referred to the decisions in Hori
Ram Singh v. Emperor19 and H.H.B. Gill v. The King20
.
The three-Judge Bench quoted the observations of Lord
Simonds made in H.H.B. Gill (supra) in approving the
statement of law made in Hori Ram Singh (supra). The
Court also took note of the fact that the decision in H.H.B.
Gill (supra) had been approved in Albert West Meads v.
The King21
, Phanindra Chandra v. The King22 and R. W.
Mathams v. State of West Bengal23 and eventually held:-
“It is not therefore every offence committed by a
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
19 1939 FCR 159 (AIR 1939 FC 43)
20 1948 FCR 19 : (AIR 1948 PC 128)
21 AIR 1948 PC 156
22 AIR 1949 PC 117
23 AIR 1954 SC 455
11Page 12
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 office may
be entirely unconnected with the official duty as
such or it may be committed within the scope of
the official duty. Where it is unconnected with
the official duty there can be no protection”.
12. The Court while arriving at the said conclusion also
placed reliance on Om Prakash Gupta v. State of U.P.24
and ultimately came to hold that the sanction of the
Government is not necessary for prosecution of the accused
under Section 409 IPC.
13. The aforesaid two authorities make it clear that no
sanction is needed to launch the prosecution for the offence
punishable under Section 409 IPC. As we notice from the
impugned judgment, the learned Single Judge has been
swayed away by what has been stated in B. Saha (supra).
In the said case, the appellants had sought discharge on
the ground that cognizance of the complaint had been taken
without obtaining sanction under Section 197 CrPC and
Section 155 of the Customs Act, 1962. The Magistrate had
accepted the objection relying on the decision in
24 AIR 1957 SC 458
12Page 13
Shreekantiah Ramayya Munipalli (supra). The said
order was challenged by the complainant before the High
Court and the learned Single Judge, after elaborate
discussion opined that no sanction was required for the
prosecution of the accused-appellants for the offence under
Sections 120-B/409 IPC because they were certainly not
acting in the discharge of their official duties, when they
misappropriated the goods. The three-Judge Bench
analyzing the ambit and scope of Section 197 CrPC opined
that 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 the
said 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”. The Court
proceeded to observe that in the wider sense, the said 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 and the right approach to the import of these
13Page 14
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. The Court referred to the
observations of Ramaswami, J., in Baijnath v. State of
M.P.
25, which is to the following effect:-
“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 Section
197 of the Criminal Procedure Code will be
attracted”.
After so stating, the Court held that 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 public servant either in
his official capacity or under colour of the office held by
him.
14. The Court thereafter observed that whether an offence
had been committed in the course of official duty or not,
25 AIR 1966 SC 220
14Page 15
color of office cannot be answered hypothetically and would
depend on the facts of each case. The Court referred to the
decisions in Hori Ram Singh (supra) and the observations
made in Gill’s case for the purpose of appreciating what
should be the broad test. The Court reproduced a passage
from the Constitution Bench in Matajog Dube (supra)
which states about reasonable connection between the act
and the discharge of official duty, and that the act must
bear such relation to the duty that the accused could lay a
reasonable but not a pretended or fanciful claim, that he
did it in the course of the performance of his duty. We have
ingeminated the same, though we had earlier reproduced
the same.
15. After so stating, the Court adverted to the facts. The
Court noticed that the fact complained of is dishonest
misappropriation for conversion of the goods by the
appellants which they had seized, and as such, were
holding in trust to be dealt with in accordance with law.
The Court opined there can be no dispute that the seizure
of the goods by the appellants being entrusted with the
goods or dominion over them was an act committed by them
15Page 16
while acting in the discharge of their official duty, but the
act complained of subsequent dishonest misappropriation
or conversion of those goods by the appellants, which is the
second necessary element of the offence of criminal breach
of trust under Section 409 IPC, and hence, it could not be
said that the act was committed in the course of
performance of their official duty. It was observed by the
Court that there was nothing in the nature or quality of the
act complained of which attaches to or partakes the official
character of the appellants who allegedly did it nor could
the alleged act of misappropriation or conversion reasonably
said to be imbued with the color of the office held by the
appellants. The Court referred to the test in Hori Ram
Singh (supra) and thereafter stated thus:-
“This, however, should not be understood as an
invariable proposition of law. The question, as
already explained, depends on the facts of each
case. Cases are conceivable where on their
special facts it can be said that the act of
criminal misappropriation or conversion
complained of is inseparably intertwined with the
performance of the official duty of the accused
and therefore, sanction under Section 197(1) of
the Code of Criminal Procedure for prosecution of
the accused for an offence under Section 409,
Indian Penal Code was necessary”.
16Page 17
16. The three-Judge Bench distinguished the decision in
Shreekantiah Ramayya Munipalli (supra) and also
Amrik Singh (supra). The ultimate conclusion of the Court
reads thus:-
“There are several decisions of this Court, such
as, Om Prakash Gupta v. State of U.P.; Baijnath v.
State of M.P. (supra) and Harihar Prasad v. State
of Bihar26, wherein it has been held that sanction
under Section 197, Criminal Procedure Code for
prosecution for an offence under Section 409,
Indian Penal Code was not necessary. In Om
Prakash Gupta case (supra) it was held that a
public servant committing criminal breach of
trust does not normally act in his capacity as a
public servant. Since this rule is pot absolute,
the question being dependent on the facts of each
case, we do not think it necessary to burden this
judgment with a survey of all those cases”.
On the aforesaid analysis, the appeal was dismissed.
We will advert to the appreciation of the ratio of the
aforesaid decision by the learned Single Judge after we take
note of certain other authorities.
17. In State of Maharashtra v. Dr. Budhilota
Subbarao27, the Court referred to the authority in B. Saha
(supra), Arulswami (supra) and stated that the concept of
sanction has been widened by extending protection to even
26 (1972) 3 SCC 89
27 (1993) 3 SCC 339
17Page 18
those acts or omissions which are done in purported
exercise of official duty and that is under the colour of
office. Proceeding further, the Court stated that official
duty implies that the act or omission must have been done
by the public servant in course of his service and such act
or omission must have been performed as a part of duty
which further must have been official in nature. As has
been stated by the Court, the provision has to be construed
strictly while determining its applicability to any act or
omission in course of service and its operation has to be
limited to those duties which are discharged in course of
duty. It has been held that:-
“But once it is established that act or omission
was done by the public servant while discharging
his duty then the scope of its being official should
be construed so as to advance the objective of the
section in favour of the public servant. Otherwise
the entire purpose of affording protection to a
public servant without sanction shall stand
frustrated. For instance a police officer in
discharge of duty may have to use force which
may be an offence for the prosecution of which
the sanction may be necessary”.
18. The facts in the said case are absolutely different but
we have only referred to the said authority to appreciate
18Page 19
that it has reiterated the principle that an act must bear a
relation to the duty that the accused could lay a reasonable
claim that the act has been in exercise of official duty or
duty that has been done has the colour of office.
19. In Shambhoo Nath Misra v. State of U.P.28, a private
complaint was filed by the appellant therein against the
second respondent for the offences punishable under
Sections 409, 420, 465, 468, 477-A and 109 IPC. The
learned Magistrate had dismissed the complaint holding
that sanction under Section 197 CrPC was not obtained.
The High Court accepted the view of the learned Magistrate.
Be it stated, the learned Judge had relied upon the
judgment of Hori Ram Singh (supra), B. Saha (supra) and
Gill’s case. The Court observed that the requirement of the
sanction by competent authority or appropriate Government
is an assurance and protection to the honest officer who
does his official duty to further public interest. However,
performance of official duty under colour of public authority
cannot be camouflaged to commit crime. The Court further
stated that to proceed further in the trial or the enquiry, as
28 (1997) 5 SCC 326
19Page 20
the case may be, it has to apply its mind and record a
finding that the crime and the official duty are not integrally
connected.
20. Thereafter, the Court held:-
“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”.
Being of this view, the Court allowed the appeal and
set aside the order of the Magistrate and directed
restoration of the complaint.
21. In State of Kerala v. V. Padmanabhan Nair29 it has
been held that when no sanction under Section 197 is
necessary for taking cognizance in respect of the offences
under Section 406 and Section 409 read with Section 120-B
IPC. Similar principle has been laid down in State of H.P.
29 (1999) 5 SCC 690
20Page 21
v. M.P. Gupta30. In Parkash Singh Badal and another v.
State of Punjab and others31 it has been ruled that the
offence of cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and 120-B can
by no stretch of imagination by their very nature be
regarded as having been committed by any public servant
while acting or purporting to act in discharge of official
duty. In such cases, official status only provides an
opportunity for commission of the offence. Similar principle
has been reiterated in Choudhury Parveen Sultana v.
State of West Bengal and another32 wherein the Court
referred to the authority in Bhagwan Prasad Srivastava
v. N.P. Mishra33 and ruled thus:-
“12. It was also observed in Bhagwan Prasad
Srivastava (supra) that Section 197 has been
designed to facilitate effective and unhampered
performance of their official duty by public
servants by providing for scrutiny into the
allegations of commission of offence by them
by their superior authorities and prior sanction
for their prosecution was a condition precedent
to the taking of cognizance of the cases against
them by the courts. It was finally observed that
the question whether a particular act is done
by a public servant in the discharge of his
30 (2004) 2 SCC 349
31 (2007) 1 SCC 1
32 (2009) 3 SCC 398
33 (1970) 2 SCC 56
official duties is substantially one of the facts
to be determined in the circumstances of each
case.”
22. A survey of the precedents makes it absolutely clear
that there has to be reasonable connection between the
omission or commission and the discharge of official duty or
the act committed was under the colour of the office held by
the official. If the acts omission or commission is totally
alien to the discharge of the official duty, question of
invoking Section 197 CrPC does not arise. We have already
reproduced few passages from the impugned order from
which it is discernible that to arrive at the said conclusion
the learned Single Judge has placed reliance on the
authority in B. Saha’s (supra). The conclusion is based on
the assumption that the allegation is that while being a
public servant, the alleged criminal breach of trust was
committed while he was in public service. Perhaps the
learned Judge has kept in his mind some kind of concept
relating to dereliction of duty. The issue was basically
entrustment and missing of the entrusted items. There is
no dispute that the prosecution had to prove the case. But
the public servant cannot put forth a plea that he was doing
the whole act as a public servant. Therefore, it is extremely
difficult to appreciate the reasoning of the High Court. As is
noticeable he has observed that under normal
circumstances the offences under Sections 467, 468 and
471 IPC may be of such nature that obtaining of sanction
under Section 197 CrPC is not necessary but when the said
offences are interlinked with an offence under Section 409
IPC sanction under Section 197 for launching the
prosecution for the offence under Section 409 is a condition
precedent. The approach and the analysis are absolutely
fallacious. We are afraid, though the High Court has
referred to all the relevant decisions in the field, yet, it has
erroneously applied the principle in an absolute fallacious
manner. No official can put forth a claim that breach of
trust is connected with his official duty. Be it noted the
three-Judge Bench in B. Saha (supra) has distinguished in
Shreekantiah Ramayya Munipalli (supra) keeping in view
the facts of the case. It had also treated the ratio in Amrik
Singh (supra) to be confined to its own peculiar facts. The
test to be applied, as has been stated by Chandrasekhara
Aiyar, J. in the Constitution Bench in Matajog Dube (supra)
which we have reproduced hereinbefore. The three-Judge
Bench in B. Saha (supra) applied the test laid down in
Gill’s case wherein Lord Simonds has reiterated that the
test may well be whether the public servant, if challenged,
can reasonably claim, that what he does, he does in virtue
of his office.
23. Tested on the touchstone of said principles, it cannot
be said that in the obtaining factual matrix, sanction under
Section 197 CrPC was necessary. We are compelled to
observe that the High Court should have been more vigilant
in understanding the ratio of the decisions of this Court.
24. Another line of argument was advanced on behalf of
the appellant-Corporation that even if the respondents are
treated as public servants, they being the employees of the
Corporation, they do not get the protective shelter of Section
197 CrPC. In Lakshmansingh Himatsingh Vaghela
(supra), a three-Judge Bench dissecting the anatomy of
Section 197(1) CrPC opined that the said provision clearly
intends to draw a line between public servants and to
provide that only in the case of the higher ranks should the
sanction of the government to their prosecution be
necessary. While a public servant holding an office of the
kind mentioned in the section is as such public servant
appointed to another office, his official acts in connection
with the latter office will also relate to the former office.
Thereafter, the Court ruled:-
“The words “removable from office” occurring in
Section 197 signify removal from the office he is
holding. The authority mentioned in the section
is the authority under which the officer is serving
and competent to terminate his services. If the
accused is under the service and pay of the local
authority, the appointment to an office for
exercising functions under a particular statute
will not alter his status as an employee of the
local authority”.
25. In the said case, the appellant was admittedly a
laboratory official in the service and pay of Municipal
Corporation of Ahmedabad. His appointment as Public
Analyst by the Government, as held by this Court, did not
confer him the status of a public servant or an officer under
service and pay of the Government. Being of this view, the
Court opined he was not a public servant removable only by
the State Government and accordingly allowed the appeal.
26. In Md. Hadi Raja v. State of Bihar34 the question
arose whether Section 197 CrPC was applicable for
34 AIR 1998 SC 1945
prosecuting officers of the public sector undertakings or the
Government companies which can be treated as State
within the meaning of Article 12 of the Constitution of India.
The Court referred to Section 197 CrPC, noted the
submissions and eventually held that the protection by way
of sanction under Section 197 CrPC is not applicable to the
officers of Government Companies or the public
undertakings even when such public undertakings are
‘State’ within the meaning of Article 12 of the Constitution
on account of deep and pervasive control of the government.
27. The High Court has not accepted the submission of
the Corporation in this regard. We are constrained to note
that the decision in Md. Hadi Raja (supra) has been
referred to in the grounds in this appeal. There is nothing
on record to suggest that the said decision was cited before
the High Court. It has come to our notice on many an
occasion that the relevant precedents are not cited by the
Corporations and the government undertakings before the
High Court. We should, as advised at present, only say that
a concerted effort should be made in that regard so that a
stitch in time can save nine.
28. In view of the aforesaid analysis, the irresistible
conclusion is that the respondents are not entitled to have
the protective umbrella of Section 197 CrPC and, therefore,
the High Court has erred in setting aside the conviction and
sentence on the ground that the trial is vitiated in the
absence of sanction. Consequently, we allow the appeal
and set aside the judgment and order passed by the High
Court and remit the matter to the High Court to decide the
revision petition in accordance with law.
...............................J.
[Dipak Misra]
...............................J.
New Delhi, [Shiva Kirti Singh]
June 29, 2016
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