John Clarance vs State of Tamil Nadu

Heard both the parties.

The above revision petition is directed against the order dated 7.11.95 in C.A.NO. 20 of 1993 on the file of the learned Sessions Judge,

Nagercoil, confirming the order of conviction dated 11.3.1993 in C.C.No.1104 of 1993 on the file of the learned Judicial Magistrate-2,

Tirunelveli, convicting the petitioner for an offence punishable u/s 409, I.P.C. sentencing for one year rigorous imprisonment with a fine of Rs.1000

in default of which, three months rigorous imprisonment.

The petitioner was facing a trial before the learned Judicial Magistrate-2, Tirunelveli in C.C.No.104 of 1993 for an offence punishable u/s 409

I.P.C. with regard to an occurrence said to have taken place during the inspection held at 2.30 p.m. on 2.7.88 in Udayamarthandam Post Office,

during which more than worth of Rs.12,985.45 entrusted to the petitioner were found in shortage.

Eight witnesses, namely P.W.1 to P.W.2 were examined, 30 documents were marked, namely P.1 to P.30 on behalf of the prosecution, while,

the petitioner examined himself as a defence witness as D.W.1 and also marked two documents namely R.1 and R.2 on his behalf.

The court below, after careful consideration of the evidence of P.W.1 to P.W.8, Exs. P.1 to P.30, D.W.1 and Exs. R.1 and R.2 held that the

petitioner has committed criminal breach of trust to the tune of Rs.12,985.45 entrusted to him by dishonestly disposing the same in violation of the

directions prescribed to him in that regard and committed an offence punishable u/s 409, I.P.C. Therefore, the trial Judge, by order dated 11.3.93

in C.C.No.104 of 1993 convicted the petitioner for the offence punishable u/s 409,I.P.C. and sentenced him for one year rigorous imprisonment

and a fine of Rs. 1,000 in default of which, three months rigorous imprisonment and the same was confirmed in appeal in C.A.No.20 of 1993 by

order dated 7.11.95 by the learned Session Judge, Nagercoil. Hence the revision petition.

The learned counsel for the petitioner contends that the courts below erred in believing the evidence of P.W.1 to P.W.8 and Ex.P.l to P.30. The

learned counsel for the petitioner, also challenges the above orders of conviction and sentence of the courts below, only on the ground that the

prosecution failed to get sanction of the government before initiating the prosecution on the ground that the petitioner violated the procedure

contemplated u/s 197, Cr.P.C.

Per contra, the learned Government Advocate contends that there is no illegality or irregularity in denying the evidence of P.W.1 and P.W.2

inasmuch as they are government servants and no motive can be initiated against them. The reliance of Exs. P.1, P.2, and P.3, being complaints,

cannot be ignored, and therefore, the reliance on the same cannot be complained by the petitioner, particularly when Exs. P.4 to P.30 corroborate

with the said complaints, namely, P.1 to P.3.

The learned Government advocate, further, placing reliance on the decision in Shanbhoonath Misra v. State of U.P. and others, 1997 S.C.C.

Crl 676 contends that no sanction is required in the case of an offence punishable u/s 409, I.P.C. as held by the Apex Court.

I have given a careful consideration to the submissions of both sides.

As pointed out by the learned Government Advocate, the evidence of P.W.1 and P.W.2 cannot be ignored or overlooked as they happen to

be government employees, and particularly, no motive was suggested against them. Similarly, reliance on Exs. P.1, P.2 and P.3 also cannot be

objected as Exs. P.4 to P.30 corroborate with the same.

That apart, as rightly relied by the learned Government Advocate, in the decision of Shambhoonath Misra v. State of U.P. and others, 1997

S.C.C. Crl 676, wherein, it is held as follows:

The essential requirement postulated for the sanction to prosecute the public servant is that the offence alleged against the public servant must have

been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servants act is in

furtherance of the performance of his official duties. If the act omission is intergral to the performance of public duty, the public servant is entitled to

the protection u/s 197(1) of Cr.P.C. without the previous sanction, the complaint charge against him for the alleged offence cannot be proceeded

with in the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless

harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to

the best of his ability. The threat of prosecution demoralises the honest officer. 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. Public duty may provide him an opportunity

to commit crime. The court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime

and the official duty are not integrally connected.

When the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc., it cannot be said

that he acted in discharge of his official duties because 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 iterlinked with the crime committed in

the course of the same transaction.

In view of the law laid down by the Apex Court reported in the above decision no sanction u/s 197, Cr.P.C. is required to initiate prosecution

against the petitioner herein.

In any event, I do not find any good and sufficient reasons to interfere with the concurrent finding of conviction and sentence imposed by the

courts below, and therefore, they are confirmed.

However, the jail authorities are directed to give remission of sentence to the petitioner giving the benefit of the relevant Government Orders

applicable to the case of the petitioner, taking note of the number of days of imprisonment already undergone by him.

Since it is not disputed by the learned Government Advocate that the petitioner is entitled to the benefit of remission of sentence as per the

relevant Government Orders, the petitioner need not surrender before the prison authorities.

In the result, the revision petition is dismissed with the above direction. However, there will be no orders as to costs.