S. Amrik Singh vs State

Passey, J.—This is a petition under Article 134 (c) of the Constitution for a certificate that the case is fit, for being taken in appeal to the Supreme Court, of India. The Petitioner is S. Amrik Singh, what was an S. D. O. (P.W.D) serving under, the Pepsu Government and who was tried for offences under Sections 409 and 465, Penal Code. He was acquitted by the trial Magistrate but that acquittal was, on an appeal by the State, quashed by our order dated 15-5-1953 and he was found guilty and., sentenced for both these offences. The petition does not show that any substantial point of law is involved in the case except that it has been polnted out that the trial was bad; as no sanction, as contemplated by Section 197, Code of Criminal Procedure for prosecuting the Petitioner u/s 465, I.P.C. had been obtained and that "the sanction granted'' for launching prosecution u/s 409, I. P. C. was defective on account of its not being free from indefiniteness or vagueness.

It has to be mentioned here that the plea of want of sanction being a bar to a valid prosecution was not raised during the trial nor in this Court when the appeal was heard although the Petitioner was represented by one of the leading lawyers .here. When a public servant is charged with an offence before a Magistrate'' or a Judge, it would, no doubt, be the duty of that Magistrate or Judge to consider whether that offence .committed by that public servant in the discharge of his official duty or when he was purporting to discharge that duty and. whether sanction to prosecute him is necessary and has been obtained; but his professional engagement casts an equally if not greater duty upon the counsel representing the Public Servant accused to bring to the notice of the Magistrate or Judge trying the case the question of sanction at the earliest opportunity so that he can determine it before he begins to deal with the facts and merits of the prosecution accusations and thus save public time, inconvenience and expenses to the accused and avoid proceedings that may later be found to be contrary to law for want of sanction. The counsel in the trial Court as well as in this Court failed in their duty to do so, if at all the question of sanction was deemed to have a material bearing.

We had, however, on a perusal of the record come across a letter of the Chief Secretary, Pepsu Government addressed to the Inspector-General of Police, in which it was stated that.

I return herewith papers relating td case u/s 409, I.P.C. against S. Amrik Singh S.D.O. P.W.D. I am directed to convey sanction of the Government to his prosecution........

and it was, therefore, that it was mentioned in our judgment that sanction for the prosecution of the Petitioner had been obtained. In the grounds of the petition it has not been contended that sanction for prosecution of S. Amrik Singh for criminal breach of trust was necessary or that It was not obtained or that the order of sanction was imperfect.

We have, however, looked into the order of the State Government on which the communication of the Chief Secretary alluded to above was based and do not feel the slightest hesitation in observing with regret that the Chief Secretary conveyed sanction of the Government when in lact none had been granted. All that the Government had permitted was the registration of a case and enquiry which by no stretch of language was tantamount to permission to prosecute the Petitioner on the specific charges on which he was subsequently tried. The conclusion therefore must be that the trial Magistrate took cognizance of the offences of forgery and criminal breach of trust and proceeded to try the Petitioner without the previous sanction of the Government.

The question, however, is whether want of such sanction vitiated the trial in this case. Section 197, Code of Criminal Procedure provides protection to public servants of the category mentioned in it and forbids Courts to take cognizance of certain offences committed by them while acting or purporting to act in the discharge of their official duties unless the necessity or propriety of launching their prosecution has been duly considered by the appropriate authority specified in the Section and that authority has given its consent or permission for their prosecution. The scope of protection is obviously limited and protection against his prosecution can be invoked by a public servant only when the offence which he is accused of having committed, was committed by him in the discharge of his official duties or when he was purporting; to act in discharge of those duties.

The mere fact that the offender was a public servant when the alleged offence was committed by him would not entitle him to urge want of sanction as a bar to his prosecution. It has further to be proved by him that the act amounting to an offence committed by him was so closely connected with his official duties that the two, viz., the act complained of and the official duties were inseparable. The onus in such cases is upon the accused who depends upon and advances the plea'' of the bar to prove the facts which would make Section 197, Code of Criminal Procedure applicable. Forgery or embezzlement are not acts which an S. D. O. has to do while discharging his duties as such and since they are no part of his official duties, it cannot be claimed by the Petitioner .that sanction for his prosecution for those offences was indispensable.

The charge against the Petitioner was that he had forged a document showing payment to- and receipt by one Parma Khalasi of Rs. 51/- as his pay for the month of April, 1951. No Parma had'' in fact been employed in that month or paid off his said pay subsequently and the receipt purporting to be given by him was a fabricated document. The accused had put the impression of his own right middle finger on that receipt which was passed off by him as genuine. The amount of Rs. 51/- thus shown to have been paid to a fictitious Parma was appropriated by the accused himself. It is evident from the Acquaintance Roll that on 22-5-51 when the supposed payment to Parma was made no other disburse ment was made by the accused. There is not a shred of evidence as to the place where the payment was made by the accused whether in his office or at his house or at Karhali which he used to visit to supervise a particular job that was being executed through a contractor. No wit- . ness was produced in defence to prove any payment to any Parma and the prosecution had led evidence direct and circumstantial to establish that no Parma was at all employed or paid.

Similar must be our observation with regard to the forgery proved to have been committed by the accused. There is no evidence to indicate that the accused was acting as a S.D.o. or purporting to act as such when he forged the receipt. As a matter of fact there is no evidence even to show that he was doing anything that was connected with the discharge of his duties when he forged the receipt. There is thus no material to conclude that the two offences were committed by the accused under the circum stances given in Section 197, Code of Criminal Procedure and that section can have no application if the acts complained of were done by him in his private capacity. There being no material justifying an inference that the accused was engaged in his official duty when he committed the illegal acts and it being not enough that he was in those days holding an official position, benefit of Section 197, Code of Criminal Procedure cannot be extended to him. The petition is dismissed.

Gurnam Singh, J.

I agree with the conclusions arrived at by my learned brother.