State of Haryana vs Kehar Singh

Being aggrieved by the order of Chief Judicial Magistrate, Karnal dated 17-12-1996 passed in case No. 478 of 1994 ''State v. Kehar Singh'', the State of Haryana has filed this criminal revision.

Briefly stated the prosecution case was that respondent-accused Kehar Singh was Sarpanch of Gram Panchayat Nidana. During his tenure as Sarpanch he misappropriated Government funds. He got four walls of village pond constructed by using inferior quality of cement and bricks while in the accounts maintained in the Panchayat office he has shown the cost of superior quality of cement and backs. As per the enquiry conducted by Executive Engineer, State Vigilance Bureau on the construction of these walls of village tank 9 bags of cement were not used which are shown in the account. During his tenure as Sarpanch from 1-8-1989 to 2-8-1990 he received 890 bags of cement while as per quality parameters of project cost only 774 bags of cement are used. Thus he has embezzled the cost of 103 bags of cement. In the same way while constructing village drainage and getting the school rooms plastered he has wrongly shown the use of 8 and 17 bags of cement respectively which are not at all used as per the quality parameters of project cost of this construction work. Thus in all he has misappropriated 137 bags of cement by showing their use in the account books though in fact they were not so used.

On the basis of the report submitted to the Superintendent of Police, Haryana State Vigilance Bureau, F.I.R. was lodged with Police Station, SVB Karnal. On the basis of this F.I.R., investigation was held and challan was submitted in the Court of Chief Judicial Magistrate, Karnal.

Accused-respondent raised an objection that as the State has submitted this challan without obtaining prior sanction u/s 197, Cr.P.C. he cannot be prosecuted for the alleged offence. By passing the impugned order, learned Chief Judicial Magistrate, Karnal has upheld the objection. While discharging the accused-respondent, learned Chief Judicial Magistrate has given opportunity to the prosecution to present the challan against accused respondent after obtaining appropriate sanction from the State Government u/s 197 of the Code.

Learned Assistant Advocate-Generl strongly submitted that first of all accused-respondent does not fall in the category of ''public servant'', therefore, the question of obtaining prior sanction u/s 197 of the Code before prosecuting him does not arise.

Further relying on Shambhoo Nath Misra Vs. State of U.P. and others, learned Assistant Advocate-General vehemently argued that from the F.I.R. it is evident that respondent-accused has fabricated Panchayat record and has misappropriated public funds. The commission of these offences was not part of his official duty. Therefore, for prosecuting respondent-accused for the said offences, prior sanction u/s 197(1) of the Code is not required.

Respondent''s learned counsel relying on K.S. Prabhakar, K.A.S. Vs. M/s Bhandra Shahakari Sakkare Karkhane Niyamit, and Jagdish Parshad v. Nathu Singh 1994 (1) All Cr LR 633 contended that accused respondent being ex-sarpanch was a public servant and he cannot be prosecuted without prior sanction u/s 197(1), of the Code. He also clarified that from the F.I.R. itself it is evident that whatever allegations of embezzlement and misappropriation of public funds are against the accused-respondent those acts were committed by the accused-respondent in the discharge of his official duties. Therefore, there is no merit in this revision petition.

The first point for decision is whether respondent-accused is a ''public servant''. Section 3(1) of the Punjab Gram Panchayat Act, 1952 (as applicable to Haryana) lays down that a Sarpanch is a ''public servant''. u/s 102 of the said Act, Sarpanch is removable from the office by the State Government. u/s 197 of the Code a ''public servant'' who is not removable from his office save with the sanction of the State Government cannot be, tried for an offence committed by him while purporting to act in the discharge of his official duty except with the previous sanction of the State Government. In Jagdish Parshad''s case (supra) and in State of Tamil Nadu Vs. R. Krishnamurthy, it is hold that Sarpanch of a Gram Panchayat is a ''public servant'' and is removable from office by the State Government.

The next question is whether this protection u/s 197(1) of the Code is available to the accused-respondent. The special protection afforded by Section 197 should be strictly construed and unless material is placed before the Court in support of a claim for its protection, ordinary the accused should be treated by ordinary law. In order to determine whether in a particular case a public servant is entitled to the protection of Section 197 of the Code of Criminal Procedure all that has to be considered is whether the act complained of against the public servant, which is alleged to constitute the offence, was committed by him while discharging his official duty and that such act had a reasonable connection with his official duty. It is not material whether in discharging such official duty, the public servant acted somewhat in excess of his limits.

There are three facets in the consideration of the protection given by S. 197 to the acts done by public officers :

(i) Whether there is something in the nature of the act complained that attaches to it the official character of the person doing it;

(ii) Where the official character or status of the accused gave him an opportunity of doing the act, and

(iii) Where the offence is committed at a time when the accused was engaged in his official duty.

The first is the correct facet to which Section 197, Code of Criminal Procedure, applies. Question whether sanction is required is one of fact to he determined on the basis of duties to be discharged and relation of such duties to the act complained of.

Supreme Court in Amrik Singh Vs. The State of Pepsu, held that that if the act complained of is directly concerned with the official duty of the accused so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary.

Further in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, the Court observed at page 863 (of Cri LJ) :-

"It is not duty which the Courts have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it."

In Matajog Dobey Vs. H.C. Bhari, the Apex Court has held at page 145 (of Cri LJ) :-

"There must be a reasonable connection between the act and the official duty. It does, not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at later stage when the trial proceeds on merits.

What we must find out is whether the act and the official duty are so inter related that one can postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation."

In K. Satwant Singh Vs. The State of Punjab, the Apex Court has held (Para 16 of Cri LJ) :-

"The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. 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."

In another case in Dhannjay Ram Sharma Vs. M.S. Uppadaya and Others, the words used in Section 197 "while action or purporting to act in the discharge of his official duty" - were considered by the Apex Court and their Lordships held that railway servant going to the house of the complainant to witness search and there committing offences of theft misappropriation and wrongful confinement could possibly be not said to be performing their official duty or purporting to act in the performance of their official duty. Hence, sanction u/s 197 Code of Criminal Procedure was not necessary.

In Baijnath Gupta and Others Vs. The State of Madhya Pradesh, it was held at page 186 (of Cri LJ) :-

"It is not every offence committed by a public servant that requires sanction for prosecution u/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 where the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. What is important is the quality of the act and the protection contemplated by Section 197 of the Criminal Procedure Code, will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. If it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of official duty or in excess of it that the protection is claimable."

In this judgment, the Apex Court relied upon AIR 1948 128 (Privy Council); AIR 1948 156 (Privy Council); AIR 1949 117 (Privy Council) and R. W. Mathams v. State of West Bengal AIR 1954 SC 455 : 1954 CriLJ 1161.

In Bakhshish Singh Dhaliwal Vs. The State of Punjab, this point was again considered by the Apex Court. In that case the facts were - ''A'' submitting false claims to Government of Burma and obtaining payment of money in respect of some works not carried out by him for Government - ''A'' was tried for the offence of cheating. ''B'' was tried for abetment of offence of cheating by falsely certifying correctness of the claim by verifying these bills. Payments were made to ''A''. ''B'' was tried along with ''A'' for abetment of offence of cheating by falsely certifying correctness of the claim. They were convicted. In the appeal, it was contended that trial of ''A'' was vitiated for want of sanction u/s 197, Cr.P.C. for prosecution of public servant (B). On this fact it was held that trial was not vitiated for want of sanction as neither ''A'' was a public servant nor the act of public servant in abetting ''A'' was done in the discharge of his official duty.

In Darshan Singh v. State of Punjab, 1987 CriLJ 135 it is held that the offence attributed to the petitioner in respect of the Bill is that he did not make any entry in the cash book and that he had misappropriated the amount thereby. On these facts, it was held that not making of such entry is to be taken as an omission in the discharge of his official duties and thus it requires sanction of the Government to prosecute him.

Single Judge of the Karnataka High Court in K. S. Prabhakar''s case (supra) considered catena of judgments on this point. In that case the facts were that during the year 1987 to 1992 petitioner was working as Managing Director in the respondent society. In the year 1991 he was transferred as Deputy Secretary of Zila Parishad at Raichur and in his place Sri Umapathi was posted. He challenged his order of transfer. Apprehending some move by Umapathi in regard to the cancellation of that transfer, petitioner engaged a lawyer and filed caveat petition before the Karnataka Administrative Tribunal. The lawyer filed caveat petition on behalf of the petitioner describing him as Managing Director and sent him a bill for Rs. 1,500/- addressing the same to the Managing Director of the Sugar Factory. That bill was produced on 10-7-1991 processed by the office. On the reverse of it, petitioner directed payment by endorsing ''please pay''. In pursuance of this order, cheque of Rs. 1,500/- was issued to the lawyer out of the funds of the Sugar Factory/Society. Thereafter, elections were held and new elected candidate after taking over that management authorised the Managing Director Incharge to prosecute the petitioner. On 21-5-1992 petitioner returned amount of Rs. 1500/- to the Society. Alleging temporary misappropriation of Rs. 1500/-, Chairman of the respondent society filed a complaint in the Court of Judicial Magistrate Ist Class. Magistrate ordered investigation u/s 156(3), Cr.P.C. After due investigation, petitioner was summoned for an offence u/s 409, IPC by Judicial Magistrate Ist class. Petitioner raised objection that without prior sanction u/s 197, Cr.P.C. he cannot be prosecuted. On these facts the learned single Judge of Karnataka High Court after referring to various decisions observed that it is clear that it is not every offence committed by public servant that requires sanction for prosecution u/s 197(1), Cr.P.C. nor even every act done by him while he is actually engaged in the performance of his official duties, but where the act complained of is directly concerned with his official duties, then sanction would be necessary. If an offence is unconnected with the official duty there can be no protection. He further held :-

"for necessity of sanction u/s 197, Cr.P.C. the act of misappropriation must have been committed in the discharge of or in the purported discharge of the official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

He also observed that whether sanction is required u/s 197(1) will depend upon the facts of each case.

Learned Assistant Advocate General has relied in Shambhoo Nath Misra''s case (supra). In that case, the appellant filed a private complaint against R. D. Tripathi, the second respondent, for an offence under Sections 409, 420, 465, 468, 477-A and 109, IPC after examination, alleging that the second respondent and the Cashier had fabricated his signatures, drawn and misappropriation an amount of Rs. 443.90 which was due and payable to him. On the basis thereof, after recording his evidence and also the Court witness u/s 202 Code of Criminal Procedure the Magistrate dismissed the complaint holding that the sanction u/s 197 Code of Criminal Procedure was not obtained. This view was upheld by the High Court by observing that second respondent was discharging his duties as a Government servant and was alleged to have misappropriated the amount in question by forging the signatures of the appellant in the payment register. The Court further observed :-

"the offence alleged to have been committed by the respondent is related in some manner with the discharge of his official duties. There is reasonable connection between the act and the discharge of his official duty. Under these circumstances, sanction u/s 197, Cr.P.C. is necessary before prosecution of this accused."

This order of the High Court was challenged before the Apex Court. The Apex Court held :

"This essential requirement postulated for 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 servant''s act is in furtherance of his performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection u/s 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with 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 sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty 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."

They further held :-

"The question is : when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties ? 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, 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."

The facts of Shambhoo Nath Misra''s case (supra) are distinguishable. In the case in hand, the accused respondent is being prosecuted for showing the use of better quality cement and bricks while making walls of village tank, showing use of more cement bags while getting schools rooms plastered and getting village drainage constructed. It is also alleged in the F.I.R. that considering the project cost and quality parameters, respondent accused, acting as Sarpanch of the Gram Panchayat, has shown more expenditure of cement bags/amount while getting the aforementioned works done/constructed. It is also alleged that to that extent he has fabricated the accounts maintained in the Panchayat office. From these facts, it is apparent that the alleged acts are integrally connected and inseparably interlinked with the alleged crime of embezzlement and fabrication of records committed in the course of same transaction.

The question is whether before filing the charge-sheet against the respondent-ex-Sarpanch, the prosecution was required to obtain sanction u/s 6 of the Prevention of Corruption Act read with Section 197(1) of the Code. This point is no more res integra. The scope of S. 6 was first considered by the Apex Court in S.A. Venkataraman Vs. The State, wherein it was observed :-

"Section 6 of the Act must be construed with reference to the words used in the section independent of any construction which may have been placed by the decisions on the words used in the Section 197 of the Cr.P.C."

Court after analysing the terms of the section further observed :-

"There is nothing in the words used in S. 6(1) to even remotely suggest that previous sanction was necessary before a Court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed."

This view has been followed in C.R. Bansi Vs. The State of Maharashtra, R.S. Nayak Vs. A.R. Antulay, and K.S. Dharmadatan Vs. Central Government and Others, . The same view is reiterated by the Apex Court in K. Veeraswami Vs. Union of India (UOI) and Others, .

The respondent''s learned counsel could not lay hands on any other decision contrary to the above judgments. Hence, in my considered view, since the respondent is not Sarpanch of the Gram Panchayat on the date when the Chief Judicial Magistrate was required to take cognizance of the aforesaid offences, no prior sanction is required u/s 197(1) of the Code of Criminal Procedure. Hence, the revision is allowed, impugned order is set aside. The Chief Judicial Magistrate, Karnal is hereby directed to proceed further in the case in accordance with law.

Revision allowed.