Tilak Raj vs State of Punjab

V.S. Aggarwal, J.

By this common judgment Criminal Misc. 7629M of 1992 and Criminal Revision No. 709 of 1995 can conveniently be disposed of together.

The sole question agitated in the above mentioned Criminal Miscellaneous and Criminal Revision is as to whether sanction under Section 197 Cr.P.C. to prosecute the petitioner is necessary or not.

As against the petitioner, it is alleged that in the year 1981 the petitioner was posted in the office of Block Development Officer at Rurka Kalan as an Accountant. He was entrusted with Rs. 17,482/. He committed criminal breach of trust in respect of the said property. During the same period be forged certain documents i.e. challans, vouchers and cash books intending that these shall be used for purposes of cheating. It is also asserted that he wilfully and with intention to defraud destroyed and forged some vouchers and account books in the office of Block Development Officer, Rurka Kalan.

It has been urged that in the facts of the case it was necessary that before the Court could take the cognizance the sanction to prosecute, as contemplated under subsection (1) of Section 197 Cr.P.C., should have been obtained. Subsection (1) of Section 197 Code of Criminal Procedure reads :

"197(1). When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or of the State Government."

The above said provision has been enacted to provide a safeguard to public/government servants. It puts an embargo that no court can take cognizance of the offences purported to have been committed by such an officer in discharge of his official duties or purported to act in discharge of his official duties, except with the sanction of the government, competent to remove him from the said office. It provides a safeguard and protects the government servant from vexatious proceedings against him. A superior authority considers and has to give the sanction before the Court can take cognizance. As observed by this Court in the case State of Haryana v. Jagdish Chander, Criminal Revision No. 472 of 1992, decided on 10.10.1996, the intention is not to put a veil around the public servants but it is to enable them to perform duties without fear, protected from malafide and false implication in cases.

This question as to whether the sanction before prosecuting the government servant concerned is necessary or not has been agitating the minds of the Courts time and again. The law on the point is clear. No question of sanction arises under Section 197 Cr.P.C. unless the act complained of is an offence. The point that has to be determined in each case is whether the offence was committed in discharge of official duties ? There must be a reasonable nexus between the act and the official duty. If the acts complained of are integrally connected with the duty and cannot be separated, the sanction referred to above would be necessary.

In the case of H.H.B. Gill and another v. The King, AIR 1948 Privy Council 128 the court explained as to when a public servant can be said to act or purported to act in discharge of his official duties. In paragraph 30 it was observed :

"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited think it sufficient to say that in their opinion no sanction under Section 197, Criminal P.C., was needed."

This view was reaffirmed subsequently in the case of Phaninder Chander v. The King, AIR 1949 Privy Council 117. Subsequently the Supreme Court in the case of Shreekantia Ramayya Munipalli and another v. State of Bombay, AIR 1955 SC 287 again dealt with the same question and held that if Section 197 Cr.P.C. is construed narrowly, it can never be applied. In paragraph 19 the Court observed :

"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 dishonest doing of any official act but in either event the act was official because accused 2 could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. 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 case 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 again considered in the case of Amrik Singh v. State of Pepsu, AIR 1955 SC 309. The Supreme Court held that even when the charge is one of misappropriation by a public servant, the question as to whether the sanction is required or not will depend on the facts of each case. If the act complained of hinges on his duties as public servant, then sanction would be required.

The decision in the case of K. Satwant Singh v. State of Punjab, AIR 1960 SC 266 was no different. But the Court observed that there are certain offences which by the very nature cannot be held to have been committed by public servants while acting or purporting to act in discharge of his official duties. Some of the illustrations given were when a public servant accepts bribe or commits the offence of cheating. In paragraph 16 the Court observed :

"It appears to us to be clear that 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. For instance, acceptance of a bribe, an offence punishable under Section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that 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 offences have no necessary connection between them and the performance of the dutes of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences (vide Amrik Singh v. State of Pepsu, 19551 SCR 1802 : [(s) AIR 1955 SC 309)]. The act of cheating or abetment thereof has no reasonable connection with the discharge of official 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."

The decision in the case of Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220 was to the same effect. The Court observed it is not every offence that requires sanction for prosecution. It is the quality of the act that is important. In paragraph 16 the Court laid down the following guidelines :

"It is not every offence committed by a public servant that requires sanction for prosecution under Section 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 the official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. 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 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where 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." (emphasis added)

Same was the view of the Supreme Court in the case of S.B. Saha and others v. M.S. Kochar, AIR 1979 SC 1841 and more recently in the decision in the case of State of Maharashtra v. Dr. Budhikota Subharao, 1993(2) RCR 482.

The sum and substance of all the precedents quoted above is that if the act complained of is integrally connected with the duties of the office, sanction under Section 197(1) Cr.P.C. would be required. It should be within the scope of the duties. The test is whether public servant if challenged can reasonably claim that he did the act by virtue of the office. There should be reasonable connection between the act complained of and the duty. If there is no connection between the two, in that event, no sanction would be required. One would hasten to add that as observed in the case of Bakhshish Singh Brar v. Smt. Gurmej Kaur and another, AIR 1988 SC 257 the trial court can always consider the necessity of sanction after certain material or evidence is gathered at the subsequent stage.

In the present case that is Criminal Miscellaneous filed for quashing of the first information report and in the criminal revision filed against the charge that had been framed, it is apparent that allegations against the petitioner are that while he was employed in the office of Block Development Officer as an Accountant, he was entrusted with certain sum. He misappropriated the same dishonestly and prepared certain forged documents i.e. challans and vouchers intending that it should be used for purpose of cheating and destroyed certain documents with the same intention to defraud the State. The said acts cannot be described to be integrally connected with the official duty. Therefore, no sanction would be required as contemplated under subsection (1) of Section 197 Cr.P.C. Consequently, there is no merit in the petitions.

For the reasons given above as for present, the petitions being devoid of merit fail and are dismissed.