Amrik Singh Vs. The State of Pepsu
 INSC 9 (28 February 1955)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
BHAGWATI, NATWARLAL H.
CITATION: 1955 AIR 309 1955 SCR (1)1302
Criminal Procedure Code (Act V of 1898), s.
19 7(1)-Charge of criminal misappropriation against a public servantSanction
for prosecution under s. 197(1) of the Code of Criminal Procedure When
necessary-Whether every offence committed by a public servant or every act done
by him while performing official duties requires sanction for prosecution.
It is not every offence committed by a public
servant that requires sanction for prosecution under s. 197 (1) of the Code of
Criminal Procedure 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.
Whether sanction is necessary to prosecute a
public servant on a charge of criminal misappropriation, 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 are unconnected with such duties,
then no sanction is necessary.
Hori Ram Singh v. Emperor ( F.C.R.
159), H. H. B. Gill v. The King ( L.R. 75 I.A. 41), Albert West Meads v.
The King ( L.A. 75 I.A. 185), Phanindra
Chandra v. The King ( L.R. 76 I.A. 10), B. W. Mothavzs v. State of West
Bengal ( 1 S.C.R. 216) and Shreekantiah Ramayya Munipalli v. The State of
Bombay ( 1 S.C.R. 1177), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 48 of 1954.
1303 Appeal by Special Leave granted by the
Supreme Court by its Order dated the 31st July 1953 from the Judgment and Order
dated the 15th May 1953 of the High Court of Judicature for the State of Pepsu
at T h, Patiala in Criminal Appeal No. 140 of 1952 arising out of the Judgment
and Order dated the 31st March 1952 of the Court of Magistrate 1st Class,
Patiala in Challan Case No. 160/102 of 1951.
Jai Gopal Sethi, (Naunit Lal, with him) for
N. S. Bindra, (Porus A. Mehta and P. G.
Gokhale, with him) for the respondent.
1955. February 28. The Judgment of the Court
was delivered by VENKATARAMA AYYAR J.-The appellant was a Sub-Divisional
Officer in the Public Works Department, Pepsu, and was, at the material dates,,
in charge of certain works at a place called Karhali. It was part of his duties
to disburse the wages to the workmen employed in the works, and the procedure
usually followed was that be drew the amount required from the treasury, and
paid the same to the employees against their signatures or thumb-impressions in
the monthly acquittance roll. In the roll for April 1951, one Parma was
mentioned as a khalasi (menial servant), and a sum of Rs. 51 shown as paid to
him for his wages, the payment being vouched by thumb impression. The case of
the prosecution was that there was, in fact, no person of the name of Parma,
that the thumb-impression found in the acquaintance roll was that of the
appellant himself, that he had included a fictitious name in the acquaintance
roll, with intent to himself draw the amount, and that by this expedient he had
received Rs. 51 and misappropriated the same.
The First-Class Magistrate of Patiala, before
whom the appellant was put up for trial, framed charges against him under
section 465 of the Indian Penal Code for forging the thumb-impression of Parma,
and under section 409 of the Indian Penal Code for criminal misappropriation of
Rs. 51, and after a full trial, 167 1304 acquitted him. He held on the evidence
that "there was a khalasi Parma by name in the service of the accused at
Kehrauli", and that though the thumb impression in the acquittance roll
was that of the appellant, the prosecution had not established that the amount
drawn by him did not reach the hands of Parma. Against this judgment, there was
an appeal by the State to the High Court of Pepsu, which held that proof that
the thumb-impression in the acquittance roll was that of the appellant was
sufficient, ,.when taken along with other circumstances, to establish his
guilt, and accordingly convicted him both under section 465 and section 409 of
the Indian Penal Code. This appeal by special leave is directed against this
In support of " the appeal it is argued
by Mr. Jai Gopal Sethi that the conviction of the appellant is illegal, as
sanction had not been obtained under section 197 (1) of the Code of Criminal
Procedure for his prosecution, that the evidence on record is insufficient to
establish an offence either under section 465 or section 409 of the Indian
Penal Code and that there having been an acquittal of the appellant by the
trial Magistrate, the materials on record did not justify a reversal of that
verdict by the appellate Court.
The question of sanction under section 197
(1) of the Code of Criminal Procedure may be taken up first for consideration,
as it goes to the root of the matter. The facts bearing on this question are
that there was an application by the Department for sanction to prosecute the
appellant for an offence under section 409, and that, the Chief Secretary, Home
Department, sent the communication, Exhibft PX, stating that he had been
"directed to convey sanction of the Government to his prosecution".
In view of this, no question was raised before the trial Magistrate or the High
Court that the prosecution was bad for want of sanction. But after the disposal
of the appeal by the High Court, it was discovered that, in fact, there was no
order of the Government sanctioning the prosecution, and that the Chief
Secretary had committed a mistake in sendidg the communication, Exhibit PX.
1305 The position, therefore, is that the
prosecution which has resulted in the conviction of the appellant was initiated
without any sanction under section 197(1) of the Code of Criminal Procedure and
if sanction under that section is necessary, as contended for by Mr. Sethi,
then the entire proceedings including the conviction must be quashed.
According to the respondent, however, the
main charge against the appellant is under section 409, and no sanction is
required for a prosecution under that section. The point for decision is
whether sanction under section 197 (1) of the Code of Criminal Procedure is
necessary for prosecuting the appellant under section 409. There has been
considerable divergence of judicial opinion on the scope of section 197(1) of
the Code of Criminal Procedure. The question has latterly been the subject of
consideration by the highest Courts in this country, and by the Privy Council,
and the position may now be taken to be fairly well-settled. Hori Ram Singh v.
Emperor(1) is a decision of the Federal Court on the necessity for sanction
under section 270 of the Government of India Act, 1935, which is similar in
terms to section 197(1) of the Code of Criminal Procedure. The facts in that
case were that a SubAssistant Surgeon was charged under section 409 with having
dishonestly removed certain medicines from a hospital which was under his
charge, to his own residence, and under section 477-A, with having failed to
enter them in the stock book. The sanction of the Government had not been
obtained for the prosecution under section 270 of the Government of India Act,
and the point for decision was whether it was necessary. It was held that the
charge under section 477-A 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 under section 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".
(1)  F.C.R. 159.
1306 In the course of his judgment,
Varadachariar, J. discussed the scope of section 197(1) of the Code of Criminal
Procedure and after observing that the decisions on that section were not
uniform, proceeded to group them under three categories-those which had held
that sanction was necessary when the act complained of attached to' the
official character of the person doing it, those which had held that it was
necessary in all cases in which the official character of the person gave him
an opportunity for the commission of the crime, and those which had held it
necessary when the offence was committed while the accused was actually engaged
in the performance of official duties.
The learned Judge expressed his agreement
with the first of the three views.
In H. H. B. Gill v. The King(1), the question
arose directly with reference to section 197(1) of the Code of Criminal
Procedure. There, the accused was charged under section 161 with taking bribes,
and under section 120-B with conspiracy.
On the question whether sanction was
necessary under section 197(1) it was held by the Privy Council that there was
no difference in scope between that section and section 270 of the Government
of India Act, 1935, and approving the statement of the law by Varadachariar, J.
in Hori Ram Singh v. Emperor(2), Lord Simonds 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........
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".
It was accordingly held that as the acts with
which the accused was charged could not be justified as done by virtue of his
office, no sanction was necessary. The view taken in H. H. B. Gill v. The
King(1) was followed by the Privy Council in Art West Meads v. The King(-'),
and reaffirmed in Phanindra Chandra v. (1)  L.R. 75 I.A. 41.
(2)  F.C.R. 159.
(3)  L.,R. 70 I.A. 185, 1307 The
King(1), and adopted by this Court in R. W. Mathams V.
State of We8t Bengal(1).
The result of the authorities may thus be
summed up: It is not every offence committed by a public servant that requires
sanction for prosecution under section 197(1) of the Code of Criminal
Procedure; 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 mu_t precede the institution of the prosecution.
It is conceded for the respondent that on the
principle above enunciated, sanction would be required for prosecuting the
appellant under section 465, as the charge was in respect of his duty of
obtaining signatures or thumb impressions of the employees before wages were
paid to them.
But he contends that misappropriation of
funds could, under no circumstances, be said to be within the scope of the
duties of a public servant, that he could not, when charged with it, claim
justification for it by virtue of his office, that therefore no sanction under
section 197(1) was necessary, and that the question was concluded by the
decisions in Hori Ram Singh v. Emperor(1) and Albert We8t Meads v. The King(1),
in both of which the charges were of criminal misappropriation. We are of
opinion that this is too broad a statement of the legal position, and that the
two decisions cited lend no support to it. In our judgment, even when the
charge is one of misappropriation by a public servant, whether sanction is
required under section 197(1) will depend upon the facts of each case. If the
acts complained of are so integrally connected with the duties attaching (1)
 L.R. 76 I.A. 10.
(3)  F.C.R. 159.
(2)  1 S.O.R. 216.
(4)  L.R. 75 I.A. 180, 1308 to the
office as to be inseparable from them, then sanction under section 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 no sanction would be required.
Quite recently, this Court had to consider in
Shreekantiah Ramayya Munipalli v. The State of Bombay(1) the necessity for
sanction under section 197(1), when the charge was one of misappropriation
under section 409. There, the law was laid down in the following terms:
"The section has content and its
language must be given meaning. What it says is'When any public servant........
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.........
We have therefore first to concentrate on the
Now 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.
In the present case, the elements alleged
against the second accused 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'.
Now it is evident that the entrustment and/or
dominion here were in an 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".
On the facts, it was held in that case that
the several acts which were complained of, were official acts, and that the
prosecution was bad for want of sanction.
The decisions in Hori Ram Singh v.
Emperor(1), and Albert West Meads v. The King(1), when properly examined, do
not support the extreme contention (1)  1 B.C.R. 1177. (2)  F.C.R.
(3)  L.R 75 I.A. 185.
1309 urged on behalf of the respondent. In
Hori Ram Singh v. Emperor(1), the medicines had not been entered in the stock
book, and were removed by the accused to his residence, and the charge against
him was that in so removing them he had committed Misappropriation. It was no
part of the duty of the accused to remove medicines to his house, and he could
not claim that he did so by virtue of his office. He could have made such a
claim if he had, let us suppose, entered the medicines in the stock books and
shown them as expended in the hospital. But, on the facts, no official act was
involved, and that was why Varadachariar, J. observed that, ".... so far
as the charge under section 409 was concerned, the acts in respect of which he was
intended to be prosecuted could not be regarded as acts done or purported to be
done in execution of his duty".
Reference may also be made to the following
observations of Sulaiman, J. in the same case:
"The question whether a criminal breach
of trust can be committed while purporting to act in execution of his duty is
not capable of being answered hypothetically in the abstract, without any
reference to the actual facts of the case. An attempt to answer the question in
a generalized way has been responsible for loose language used in some of the
cases cited before us.... The question whether the act purported to have been
done in execution of duty or not must depend on the special circumstances of
In Albert West Meads v. The King(1), an Army
Officer had received two sums of money, and was subsequently unable to produce
them. He was charged with criminal misappropriation, and convicted. He
contended that the conviction was illegal for want of sanction, but the Privy
Council, following H. H. B. Gill v. The King(1), rejected this contention. It
is essential to note that the accused did not claim to have spent the amount in
the course of his official duties, but stated that the moneys had been consumed
by fire. It is with reference to these facts that the Privy Council observed:
(1)  F.C.R. 159. (2)  L.R. 75
(3)  L.R. 75 I.A. 41.
1310 of which he was charged', i.e. acts of
fraudulently misapplying money entrusted to his care as a public servant, 'as
acts done by him by virtue of the office that he held' ".
The result then is that whether sanction is
necessary to prosecute a public servant on a charge of criminal
misappropriation, 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
are unconnected with such duties, then no sanction is necessary.
In this view, we have to examine whether the
acts with which the appellant is charged directly bear on the duties which he
has got to discharge as a public servant. The appellant received the sum of Rs.
51 alleged to have been misappropriated, as Subdivisions Officer, and he admits
receipt of the same. Then it was his duty to pay that amount to the khalasi
Parma, and take his signature or thumb-impression in acknowledgment thereof.
The accused does claim to have paid the amount to Parma, and the acquaintance
roll records the payment, and there is in acknowledgment thereof a
thumb-impression as against his name. If what appears on the face of the roll
is true-and whether it is true or not is not a matter relevant at the stage of
sanction-then the acts with which the appellant is charged fall within the
scope of his duties, and can be justified by him as done by virtue of his
office. Clearly, therefore, sanction was required under section 197(1) of the
Code of Criminal Procedure before the appellant could be prosecuted under
section 409, and the absence of such sanction is fatal to the maintainability
of the prosecution.
The conviction should, therefore, be quashed.
In this view, there is no need to consider
whether on the evidence, the offence of criminal misappropriation or forgery
has been brought home to the appellant or not.
The appeal is accordingly allowed, and the
convictions and sentences passed on the appellant arc set aside. Fine, if paid,
will be refunded.