State of Maharashtra vs Shankar Narayan Wagh

R.K. Batta, J.—The applicant was serving as Police Head Constable at Police Station, Tahsil, Nagpur and during the period 10.09.1979 to 24.12.1983, he was incharge of Malkhana. A number of criminal cases were filed against the applicant in relation to misappropriation of various amount and for making false entries. The criminal cases pertain to misappropriation of Rs. 165.50 paise which were found to be missing at the time of inspection in the year 1979. In the year 1980, he is alleged to have misappropriated a sum of Rs.6,159/- and also made some false entries regarding the deposit of amount in respective courts. In the year 1981, he committed misappropriation of sum of Rs.8,832.30 paise. In the year 1982, he misappropriated a sum of Rs.26.456.21 paise. In the year 1983, he misappropriated an amount of Rs.27,719.6 paise. All these amounts were handed over to him as Malkhana incharge for safe custody and to deposit in the Court or to return as per orders of the Court, but it is alleged that he made false entries in the concerned register and misappropriated the said amount. The charge-sheet was filed initially in the year 1987 after transfer from the Court of J.M.F.C., Nagpur, the same were renumbered. In all these cases, the counsel for the applicant filed an application for discharge u/s 239 read with Section 197 of Criminal Procedure code on the ground that the applicant is a public servant as per definition of the ''public applicant'' under the Indian Penal Code. The applicant was prosecuted for the offence u/s 409 of Indian Penal Code. The application for discharge was rejected by Judicial Magistrate, Nagpur vide order dated 19.1.1995. Against this order, the applicant filed criminal revisions before the Sessions Court and by common judgment dated 25th July, 1996, the learned I Additional Sessions Judge, Nagpur allowed the revisions, set aside the order passed by the Chief Judicial Magistrate, Nagpur and discharged the applicant in all cases. This order is subject matter of challenge in this revision by the State.

Arguments were heard. Learned A.P.P. urged before me that in the facts of the case, no sanction is required and the learned Additional Sessions Judge, Nagpur had erred in discharging the application. In support of his submissions, he placed reliance on Shambhoo Nath Misra Vs. State of U.P. and others, ; State of Kerala Vs. V. Padmnabhan Nair, ; and P.K. Pradhan vs. The State of Sikkim represented by C.B.I. reported in JT 2001 (5) 610.

Learned Advocate for the respondent has placed reliance on head note ''C'' of the judgment of the Apex Court in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, and a judgment of the Division Bench of this Court in Rizwan Ahmed Javed Shaikh and Others Vs. Jammal Patel, S.I. and Others, . He has accordingly, after placing reliance on the said authority, urged that the revision be dismissed.

The facts have already been enumerated above and the question to be determined as to whether sanction is required to prosecute the applicant. It is necessary at this stage to refer to the position of law on the subject.

The Federal Court in AIR 1939 43 (Federal Court) had examined the question of sanction with reference to offences under sections 409 and 477A of the Indian Penal Code. It was observed by the Federal Court that when public servant embezzles property entrusted to him and thereby committing breach of trust u/s 409 of Indian Penal Code he is not doing any act nor even purports to do an act in the execution of his duty; when he commits the act it does not pretend to act in the official discharge of his duty. Therefore, it was held that consent to prosecute government servant u/s 409 of Indian Penal Code is not necessary. However, with reference to the offence u/s 477A, Indian Penal Code, it was held that it is his duty to maintain a record or a register and in maintaining that register if he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting in execution of his duty, because he is making certain entries in the register, knowing them to be false and as such consent to prosecute a government servant for the offence u/s 477A is necessary. It was further pointed out that though a reference to the capacity of the accused as a public servant is involved both in the charge u/s 409 and in the charge u/s 477A, there is an important difference between the two cases, when one comes to deal with the act complained of. In the first, the official capacity is material only in connection with the "entrustment" and does not necessarily enter into the later act of misappropriate or conversion, which is the act complained of. In the charge u/s 477A, the official capacity is involved in the very act complained of as amounting to a crime, because the gravamen of the charge is that the accused acted fraudulently in the discharge of his official duty.

The next case is Shreekantiah Ramayya Munipalli and another vs. State of Bombay (supra), upon which reliance has been placed by the learned Advocate for the respondent. In this case, sanction for prosecution of offence u/s 409 of Indian Penal Code had been obtained in respect of one accused only and as such it was held that the sanction will not cover prosecution of the other accused u/s 409 of Indian Penal Code. In this judgment, it was pointed out:-

"If Section 197, Criminal Procedure Code is construed too narrowly it can not be applied, for of course it is no part of an official''s duty to commit an offence can be. But it is not the duty which the courts have to examine so much because an official act can be performed in the discharge of official duty as well as in dereliction of it. The sanction has content and its language must be given meaning. The courts have to concentrate on the word "offence" in the section. An offence seldom consists of a single act. it is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. Where the elements alleged against the accused a public servant in charge of Government stores are first, that there was an "entrustment" and/or, "dominion", second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal" and fourth, that the disposal was "dishonest", it is evident that the entrustment and/or dominion here were in a official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."

It was held that sanction to prosecute was required in relation to the other accused was the charge of abetment of offence u/s 409, Indian Penal Code was for want of sanction the trial was vitiated.

In Amrik Singh Vs. The State of Pepsu, upon which reliance was also placed by the learned Advocate for the respondent, it was laid down that even when the charge is one of misappropriation by a public servant, whether sanction is required u/s 197(1) will depend upon the facts of each case. The Apex Court observed that :-

"It is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1), 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 that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

the duties attaching to the office as to be inseparable from them, then sanction u/s 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then so sanction would be required. The result then is that whether sanction is necessary t prosecute a public servant on a charge of a criminal misappropriate, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary."

In this case, reliance was placed on the judgment of the Apex Court in Shreekantiah Ramayya Munipalli and another vs. State of Bombay (supra) Hori Ram Singh vs. Emperor (supra) and AIR 1948 128 (Privy Council) .

The next case is a Constitution Bench judgment of the Apex Court in Om Prakash Gupta Vs. State of U.P., . In this case, the Apex Court has laid down that no sanction is necessary to prosecute public servant as he does not normally act in his capacity as a public servant when committing criminal breach of trust.

In Baijnath Gupta and Others Vs. The State of Madhya Pradesh, , it has been held :-

"Per Majority: It is not every offence committed by a public servant that required 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 if 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 the official duty or in excess of it that the protection is claimable. AIR 1948 128 (Privy Council) and AIR 1948 156 (Privy Council) and AIR 1949 117 (Privy Council) and AIR 1954 SC 455, Rel.on."

It was held that the sanction for prosecution for offence u/s 409, Indian Penal Code was not necessary and the judgment in Amrik Singh vs. State of Pepsu (supra) was doubted. It was observed that sanction of the State Government was not necessary of prosecution u/s 409, Penal Code because of the act of criminal misappropriation was not committed by him while he was acting or purporting to act in discharge of the official duty and the commission of the offence having no direct connection or inseparable link with his duties as public servant and the official status of the accused furnished him with an opportunity or occasion for committing the offence. The judgment of the Federal Court in Dr. Hori Ram Singh vs. Emperor (supra); Satwant Singh vs. State of Punjab (supra); and Om Prakash Gupta vs. State of U.P.(supra) were relied upon.

In P. Arulswami Vs. The State of Madras, , which was a case u/s 409, Penal Code, it was noticed by the Apex Court that section 106 of the Madras Village Panchayat Act was similar in language to section 197(1) and sanction u/s 197(1) is not necessary to prosecute public servant, if act of which he was complained, is entirely unconnected with his official duty. Therefore, it was held that sanction u/s 106 of the said Act also not necessary to prosecute President of Panchayat Board for offence u/s 409 of Penal Code.

In B. Saha and Others Vs. M.S. Kochar, , it was held that dishonest misappropriation or conversion of goods by public servants which they had seized did not require sanction for prosecution u/s 409 read with 120B of Indian Penal Code. In this case, it was observed :-

"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.

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) are capable of a narrow as well as a wide interpretation. 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 reasonable 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.

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. AIR 1948 128 (Privy Council) , Foll..

In case u/s 409, Indian Penal Code the official capacity is material only in connection with the "entrustment" and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of.

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 under sections 409/ 120B, 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 servants. At the most, the official status of the accused furnished them with an opportunity or occasion to commit the alleged criminal act.

There can be no dispute that the seizure of the goods by the accused and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge of their official duty. But the subsequent act of dishonest misappropriation or conversion complained of could not bear such an integral relation to the duty of the accused persons that they would genuinely claim that they committed it in the course of the performance of their official duty. There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the accused who allegedly did it. Nor could the alleged act of misappropriation of conversion, be reasonably said to be imbued with the colour of the office held by the accused persons."

In Shambhoo Nath Misra vs. State of U.P.(supra), upon which reliance has been placed by learned A.P.P. It has been laid down by the Apex Court that fabrication of record and misappropriation of public fund by public servant is not his official duty and sanction for his prosecution is not necessary.

In State of Kerala vs. V. Padmanabhan Nair (supra), upon which reliance is placed by learned A.P.P., it has been held that with regard to offence u/s 409 of Indian Penal Code read with section 120B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust and it cannot be said that if the offence is u/s 406 read with section 120B of Indian Penal Code it would make all the difference. It was further held that it cannot be said that for offences under sections 406 and 409 read with Section 120B of the Indian Penal Code sanction u/s 197 of Criminal Procedure Code is a condition precedent for launching the prosecution. It has been pointed out that it is not every offence committed by a public servant which requires sanction for prosecution u/s 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties.

Learned A.P.P. has also placed reliance on P.K. Pradhan vs. The State of Sikkim represented by C.B.I.(supra), wherein it is laid down after review of case law :-

"....Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in section 197 of the Code : "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise u/s 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. 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 a large stage when the trial proceeds on the merits. What a court has to 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 official duty, though, possibly in excess of the needs and requirements of the situation.

After reviewing case law held : Thus, from a conspectus of the aforesaid decisions it will be clear that for claiming protection u/s 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection u/s 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction u/s 197 of the code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decided the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that the he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to the decided in the main judgment which may be delivered upon conclusion of the trial."

The cases which have material bearing on the facts of the case under consideration are Hori Ram vs. Emperor (supra), Baijnath Gupta vs. State (supra), Satwant Singh vs. State of Punjab (supra) and State of Kerala vs. Padmanabhan Nair (supra).

In Hori Ram vs. Emperor (supra), a Sub-Assistant Surgeon was charged u/s 409 of Indian Penal Code with having dishonestly removed certain medicines from hospital which was under his charge, to his own residence and u/s 477A with having failed to enter them in stock book. It was held by the Federal Court that the charge u/s 477A required sanction, as ''the official capacity is involved in the very act complained of as amounting to a crime''; but that no sanction was required for a charge u/s 409, because ''the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of.

In Baijnath Gupta vs. State (supra) appellant Gupta was charged with having committed criminal breach of trust of a sum of Rs.21.450/- and Rs.10,000/-. In respect of these two items he was also charged of having abetted the offence of falsification of accounts said to have been committed by appellant Kale. With regard to these two items appellant Kale was charged u/s 477A for falsification of accounts and u/s 409/ 109 for abatement of Criminal breach of trust committed by appellant Gupta. The principal question of law arising in these two appeals was whether the conviction of the appellant Gupta u/s 409 and 477A of the Indian Penal Code was illegal as sanction of the State Government was not given to his prosecution under the provisions of section 197 of the Criminal Procedure Code. The Apex Court held :-

"Applying the principle of the present case, we are of opinion that sanction of the State Government was not necessary for the prosecution of Gupta u/s 409 of the Indian Penal Code, because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and the offence has no direct connection with the duties of the appellants as a public servant, and the official status of the appellant only furnished the appellant with the occasion or an opportunity of committing the offence.

With regard to the other charge under sections 477A/ 109 of the Indian Penal Code the legal position is different and, in our opinion, the sanction of the State Government is necessary for the prosecution of the appellant on this charge because it was committed within the scope of official duties, though in dereliction of them."

On behalf of the appellant, reliance was placed on Amrik Singh vs. State of Pepsu (supra). In this case, appellant was S.D.O. in P.W. D. and had shown Rs.51/- paid to Khalasi Parma who did not exist and Rs.51/- were pocketed by the appellant. The Apex Court held in Baijnath Gupta vs. State as under :-

"It was held by the High Court of Pepsu that the appellant was guilty both u/s 465 and section 409 of the Indian Penal Code and the sanction of State Government was not necessary for either of the charges. It was conceded on behalf of the respondent in this Court that the sanction was necessary with regard to the charge u/s 465 but with regard to the charge u/s 409 also it was held by this Court that sanction of the State Government was necessary and conviction of the appellant on both the charges was quashed. Speaking for the Court Venkatarma Ayyar, J. approved the principle expressed by the Federal Court in Hori Ram Singh vs. Emperor and also by the Judicial Committee in Gill vs. The King. Mr. Chari relied much on the decision of this Court in Amrik Singh vs. The State of Pepsu and submitted that it supported the appellant''s case. We need not examine how far the decision in Amrik Singh''s case can stand in view of the earlier decisions of the Judicial Committee and the two subsequent decisions of a large Bench of this Court in Om Prakash Gupta vs. State of U.P. and in Satwant Singh vs. The State of Punjab. In Om Prakash Gupta vs. State of U.P., it was pointed out, at page 437 of the Report, that sanction to the prosecution of a public servant u/s 409 of the Indian Penal Code is not necessary since the public servant is not acting in his official capacity in committing criminal breach of trust. In the other case, Satwant Singh vs. The State of Punjab, the appellant Satwant Singh submitted claims totalling several lakhs of rupees to the Government of Burma on the allegation that he had executed works and supplied materials. These claims were sent by the Government of Burma to Major Henderson at Jhansi in March and May, 1943, for verification as he was the officer who had knowledge of these matters. The officer certified many of these claims to be correct and sent the papers back to Shimla. On the certification of the claims by Henderson, the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Claims at Kolhapur was directed to pay the amounts sanctioned. On the request of Satwant Singh cheques were drawn on the Imperial Bank of India at Lahore and these cheques were encashed at Lahore. In all Satwant Singh was paid Rs.7,44,865 and odd. Subsequently, suspicions of the Government of Burma were aroused and it was discovered that many of the claims, including some of those of Satwant Singh, were false. According to the prosecution, Satwant Singh and committed the offence of cheating punishable u/s 420, Indian Penal Code and Henderson had abetted him in the commission of that offence by falsely certifying Satwant Singh''s claims to be true, knowing that they were false and thereby had committed an offence punishable u/s 420/ 109, Indian Penal Code.

We consider that the present case falls within the principle laid down by this Court in Satwant Singh vs. The State of Punjab by which we are bound and the view we have taken in supported by the decisions of the Federal Court in Hori Ram Singh vs. Emperor and of the Judicial Committee in Gill vs. The King."

Appeals of Gupta for charge u/s 477A of Indian Penal Code were allowed but with regard to charge u/s 409 of Indian Penal Code were maintained.

In State of Kerala vs. V. Padmanabhan Nair (supra), the respondent while working as Executive Engineer joined criminal conspiracy with four others for defrauding the Government by misappropriation of 600 tones of steel rods. It was held that sanction is not necessary for prosecution u/s 406 read with 120-B of Indian Penal Code.

Keeping in law on the subject in view, the prosecution case is that the respondent was serving as police head constable and was incharge of Malkhana and it was found during inspection that in the year 1979 that he had misappropriated the sum of Rs. 165.60 paise. The applicant later on also misappropriated various sums by making false entries regarding the deposit of amount in respective Courts. The said amounts were kept with him as Malkhana incharge for safe custody which was misappropriate by him.

In view of the facts of this case, I do not think that sanction is required to prosecute the respondent and revision is accordingly allowed and the impugned order dated 25th July, 1996 of the 1st Additional Sessions Judge, Nagpur is set aside and order of the Chief Judicial Magistrate, Nagpur dated 19.1.1995 is hereby restored. Since the matter pertains to misappropriation in the 1980s and the point of sanction was being agitated for the last many years, it is necessary that directions be given to the trial Court to dispose of the cases against the respondent on priority and with expedition, but not later than one year from the date of receipt of this order by the Chief Judicial Magistrate, Nagpur. The order be expeditiously conveyed to the Chief Judicial Magistrate, Nagpur for compliance.