S. Jayappa vs State

Though these matters are posted for admission, as notices were issued to the State and the State is represented by the learned Additional State

Public Prosecutor, they are taken up for final disposal. Since common question of law and facts arise for consideration and the petitioner is

common in all the cases, these petitions are disposed of by a common order.

The petitioner is arraigned as accused 3 in C.C. Nos. 1071 to 1077 of 1997 on the file of the Judicial Magistrate First Class, Sullia. He is

charge-sheeted by the jurisdictional police along with other for commission of the offences under Sections 468, 409 and 420 read with Section 34

of the Indian Penal Code. After the Court took cognizance of the same, the petitioner moved the Court by an application to discharge him on the

ground that prior sanction as required u/s 197 of the Criminal Procedure Code was not obtained by the jurisdictional police, as admittedly the

petitioner is a public servant and the offence alleged to have been committed by him along with others is in that capacity and while discharging his

duties as a public servant. This application was resisted by the State. Considering the rival contentions, the learned Magistrate by the impugned

order dated 20-3-1999 declined to discharge the accused. Hence, these present petitions.

Sri Subba Rao, learned Senior Counsel appearing for the petitioner in all these cases, contended that admittedly the petitioner is a public servant

being an Agricultural Officer. It is the allegation of the prosecution that while discharging such duties he has forged certain documents to show that

the dam called ""Vented Dam"" was constructed, though, in fact, it was non-existent, and thereby receiving various amounts reserved for that

purpose from the Government he has misappropriated the same. It is contended that the petitioner being an Agricultural Officer it was his duty to

send a report regarding the construction of the dam by utilising the Government fund reserved for that purpose. As such, as the alleged act of the

petitioner is committed while discharging the duties as a public servant, sanction as required u/s 197, Criminal Procedure Code is mandatory and

non-obtaining the same would vitiate the entire proceedings. In this regard, the learned Counsel for the petitioner relied upon a decision of the

Hon''ble Supreme Court in the case of Amrik Singh Vs. The State of Pepsu, , to contend that if the act complained of is directly concerned with

the official duty so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction u/s 197, Criminal Procedure

Code is necessary. He also relied upon the judgment of the Apex Court in the case of Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan

and Others, , and the decision of this Court in the case of K.S. Prabhakar, K.A.S. Vs. M/s Bhandra Shahakari Sakkare Karkhane Niyamit, , to

support his argument. It is nextly contended that by bare reading of the charge-sheet it is clear that what is found fault with the action of the

petitioner is non-construction of the dam and since construction or non-construction of the same is connected with the official duty and the

mandatory requirement u/s 197, Criminal Procedure Code is not complied with, the proceedings are vitiated. He further contended that the alleged

action as is available from the charge-sheet itself would show that the action of the petitioner is intricately mixed up with his duty as public servant

and then also the requirement of obtaining prior sanction is a must.

On the other hand, Sri S.S. Koti, learned Additional State Public Prosecutor appearing for the respondent/State in all these cases, argued in

support of the learned Magistrate to contend that what is alleged against the petitioner is not construction or non-construction of the dam, but, the

criminal act of fabrication or forgery of documents purporting to show the construction of the dam in order to utilise the amount sanctioned for that

purpose and to misappropriate the same. According to the learned Public Prosecutor, forgery or fabrication of documents and misappropriation of

the amount, by any stretch of imagination, cannot be part of official duty and hence sanction u/s 197, Criminal Procedure Code is not necessary as

rightly held by the Trial Court. In this regard, the learned Public Prosecutor relied upon the decision of the Apex Court in K. Satwant Singh Vs.

The State of Punjab, , Bakhshish Singh Dhaliwal Vs. The State of Punjab, , and B. Saha and Others Vs. M.S. Kochar, . The learned Public

Prosecutor also relied upon the latest pronouncement of the Apex Court in the case of Shambhoo Nath Misra Vs. State of U.P. and others, ,

which, according to him, is almost the same as in the present case and the Apex Court has in unequivocal terms held that fabrication of false

records and misappropriation of public fund cannot be termed as official acts of a public servant so as to give him protection of the mandatory

requirement u/s 197, Criminal Procedure Code.

So far as the facts of the case as per the charge-sheet are concerned, they are not disputed by both sides. But, what is disputed is about the

offence committed by the petitioner. According to the learned Counsel for the petitioner, the action of non-construction of the dam leading to

dereliction of duty is the offence with which the petitioner is charged. I am afraid, the interpretation is totally misconceived one. The petitioner is

charged in simpliciter for the offences under Sections 468, 409 and 420 read with Section 34, Indian Penal Code on the ground that while he was

working as an Agricultural Officer, though he was required to construct the dam, without constructing the same he has falsely prepared or

fabricated documents only in order to get the sanctioned amount from the Government and has further misappropriated the same. The offence

against the petitioner in simple words is fabrication of records and with the help of the office he held and using the same he got the sanctioned

amount to his custody and later misappropriated the same.

As is clear from the various pronouncements of the Apex Court as well as this Court, the object behind Section 197, Criminal Procedure Code

is to guard against vexatious proceedings against a public servant by securing opinion of superior officer whether it is desirable that there should be

a prosecution. This object has been interpreted as long back as in the year 1943 by the Federal Court in the case of AIR 1943 18 (Federal Court)

, which holds the field till today. No doubt, though there were various pronouncements regarding whether a case comes within the purview of

public servant or not and the necessity of obtaining sanction, the same was set at rest by the Constitution Bench of the Apex Court in Satwant

Singh''s case, supra. The Apex Court observed thus:

The act must bear such relation to the duty and the public servant could lay a reasonable but not pretended or fanciful claim, that he a did it in the

course of the performance of his duty. 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. 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 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 offence"".

This principle was once again considered by the Apex Court in the Bakhshish Singh Dhaliwal''s case, supra, reiterating the earlier principle laid

down right from the case of J.K. Gas Plant Manufacturing Company (Rampur) Limited and Others v The King Emperor . That was a case wherein

the accused was charged with the offences under Sections 420 and 417, Indian Penal Code on the ground that the accused has submitted false

claim to the Government of Burma and obtained payment of money in respect of some work not carried out from the Government. It was

contended that as the payment was made not on the basis of wrong representation, but on the basis of wrong done in the report of verifying the

claim, the offence of cheating cannot be said to have been committed by the accused. Though the Apex Court found that the transaction of

submitting claim making payment were part of official action and the Government machinery, it was held that the submission of false claim by

themselves or the act of cheating as defined u/s 415, Indian Penal Code cannot be stretched or equaled to act of discharging of official duty. In the

case of S.B. Saha, supra, the Apex Court held thus:

The sine qua non for the applicability of Section 197 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"".

Interpreting 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 Criminal Procedure Code which are capable of a narrow as well as a wide interpretation, the Apex Court

observed thus:

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. 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 will be attracted.

But, the question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One

broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office"".

Considering whether misappropriation by a public servant was in the capacity of his official duty as a public servant the Apex Court held thus:

Where the act complained of is dishonest misappropriation or conversion of the goods by the accused persons, which they had seized and, as

such, were holding in trust to be dealt with in accordance with law, sanction of the appropriate Government was not necessary for the prosecution

of the accused for an offence u/s 409/120-B, Indian Penal Code because the alleged act of criminal misappropriation complained of was not

committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct

connection or inseparable link with their duties as public servant. At the most, the official status of the accused furnished them with an opportunity

or occasion to commit the alleged criminal act"".

(emphasis supplied)

In the present case also under the garb of acting as Agricultural Officer whose one of the duties was to construct the dam and submit report, the

petitioner instead of constructing the same, fabricated certain records to show that a dam was constructed and with the help of such fabricated or

forged documents obtained sanction for various sums from the Government and he is alleged to have misappropriated the same. There can be no

dispute that submitting a report regarding construction of the dam or not by the accused can be termed as an act committed by him while acting in

the discharge of official duties. But, the act of the petitioner in creating or fabricating forged documents and with the help of the same obtaining

sanction to receive money and thereafter misappropriating the said amount cannot bear any integral relation to the duty of the accused persons that

he genuinely claimed that he committed in the course of performance of his duties. The latest pronouncement of the Apex Court in the Shambhoo

Nath Misra''s case, supra, is directly on the point of fabrication of document by public servant. The question therein was as to whether the public

servant alleged to have committed fabrication or misappropriation of public fund etc., can be said to have acted official duty. The Apex Court

answered the same as follows:

It is not the official duty of the public servant to fabricate the false record 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 same transaction. ....."".

(emphasis supplied)

In my considered view, the above observation of the Apex Court in the Shambhoo Nath Misra''s case, supra, are aptly applicable with all the

force to the present case also. Mere fact that the accused/petitioner proposes to raise the defence of the act having purported to be done in

exercise of his official duties will not by itself justify the case being thrown out for want of sanction, as the Apex Court has reminded time and again

that Courts have to look into the facts and circumstances of each case and the material placed before them to find out whether the action was in

the official capacity of a public servant and, if not, sanction may not be necessary. In the present case also, it was not the duty of the petitioner to

fabricate or forge the records nor is it the duty entrusted to him to misappropriate public fund reserved for a particular purpose. No doubt, under

the garb of official duty the petitioner is alleged to have committed the offences and applying the dicta laid down by the Apex Court in various

pronouncements referred to earlier, it is to be held that sanction was not necessary in the present case. The learned Magistrate has considered this

aspect thoroughly and in my view he has rightly held that sanction was not necessary.

In view of these findings, I see no merit in the arguments of the learned Counsel for the petitioner to set aside the well considered findings of the

Trial Court and as such these petitions are liable to be rejected.

Accordingly, these revision petitions are rejected.

However, it is to be noted that any observations made during the course of this order shall not be construed as final pronouncements as to the

commission of the offences or not by the petitioner. It is only after a full fledged trial the issue can be decided. The observations made are

incidental only to decide at this stage regarding the necessity of sanction or not and for no other purpose.