Keshavlal Mohanlal Shah Vs. The State of
Bombay [1961] INSC 104 (17 March 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1395 1962 SCR (1) 451
ACT:
Criminal Trial-Magistrate dismissed from
service for criminal misconduct-Prosecution of-Cognizance by court- Sanction to
prosecute, if necessary-Code of Criminal Procedure, 1898 (Act 5 of 1898), s.
197.
HEADNOTE:
The appellant, a Magistrate, was dismissed
from service as a result of a departmental enquiry. On a complaint filed by the
State Government he was convicted under s. 409 of the Indian Penal Code. The
point urged was that the trial Magistrate should not have taken cognizance of
the offence without the previous sanction in view of the provisions of s. 197
of the Code of Criminal Procedure.
Held, that no previous sanction was necessary
for a Court to take cognizance of an offence committed by a Magistrate while
acting or purporting to act in the discharge of his official duty if he had
ceased to be a Magistrate at the time the complaint was made or police report
was submitted to the Court, i.e., at the time of the taking of cognizance of
the offence committed.
S. A. Venkataraman v. The State, [1958]
S.C.R. 1037, applied.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 127 of 1960.
Appeal by special leave from the judgment and
order dated August 4, 1958, of the former High Court at Bombay in Criminal
Revision Application No. 728 of 1958.
B. P. Maheshwari, for the appellant.
452 Vir Sen Sawhney, R. H. Dhebar and T. M.
Sen, for the respondent.
1961. March 17. The Judgment of the Court was
delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is directed
against the judgment of the Bombay High Court. The appellant was a' Third Class
Magistrate at Sanand in 1951.
He received Rs. 200 in cash from Amar Singh
Madhav Singh as deposit for security to be released on bail. This amount was
not credited in the Criminal Deposit Rojmal and the appellant thereby committed
criminal breach of trust with respect to the amount.
The appellant was dismissed from service on
April 4, 1953, as a result of a departmental enquiry. On June 9, 1954, a
complaint was filed on behalf of the State against the appellant. He was
convicted of the offence under s. 409, Indian Penal Code, by the Trial
Magistrate. The conviction was confirmed by the Extra Additional Sessions
Judge, Ahmedabad. His revision was dismissed by the High Court.
The only point urged in this appeal is that
the learned Magistrate should not have taken cognizance of this offence without
the previous sanction of the State Government in view of the provisions of s.
197, Code of Criminal Procedure.
It is not disputed that a Court could not
have taken cognizance of this offence against the appellant if he had been a
Magistrate on June 9, 1954. The appellant was not a Magistrate on June 9, 1954,
when the complaint was filed.
The question then is whether the provisions
of s. 197 of the Code of Criminal Procedure prohibit a Court from taking
cognizance of an offence committed by a Magistrate while acting or purporting
to act in the discharge of his official duty even when he is no longer a
Magistrate on the date the Court takes cognizance. Sub-section (1) of s. 197,
Code of Criminal Procedure, reads:
"(1) When any person who is a Judge
within the meaning of section 19 of the Indian Penal Code, or 453 when any
Magistrate, or when any public servant who is not removable from his office
save by or with the sanction of a State Government or the Central 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 employed in connection with the affairs of the Union, of the
Central Government; and (b) in the case of a person employed in connection with
the affairs of a State, of the State Government." There cannot be much
scope for the contention that a Court is prohibited from taking cognizance of
an offence committed by a Judge while acting or purporting to act in the
discharge of his official duty only when that person is a Judge at the time
cognizance is taken, as otherwise full effect will not be given to the
expression 'any person who is a Judge', in the subsection. Similar expression
is not used in describing a Magistrate or a public servant. But it is clear
that those two persons should also be 'Magistrate or a public servant' at the
time cognizance is taken of an offence committed by them while acting or
purporting to act in the discharge of official duty.
In connection with 'public servant' the
expression who is not removable from his office save by or with the sanction of
a State Government or the Central Government indicates that. It is only when
the public servant concerned is in service that the question of his removal
from office can arise. If the public servant has ceased to be a public servant,
no such question arises. Therefore it seems proper to construe the expression
'when any Magistrate' in the sub- section to mean 'when a person who is a
Magistrate'.
Even if the expression be not construed in
this form, the section says: 'when any Magistrate...... is accused of any
offence'. This indicates that it is only when the accusation is against a
Magistrate that the Court will not take cognizance of an offence committed by
454 him while acting in the discharge of his official duty, without previous
sanction. If a person is not a Magistrate at the time the accusation is made,
the Court can take cognizance without previous sanction.
It has been strenuously urged on behalf of
the appellant that the expression 'when any Magistrate is accused of any
offence' refers to the stage when the accusation is first made against the
Magistrate, that is to say, when it is alleged for the first time that the
Magistrate has committed such an offence. There seems to be no justification to
add the word 'first' and read this expression as 'when any Magistrate is first
accused of any offence'. The occasion when such an allegation is made for the
first time against a Magistrate is not in connection with the Court's taking
cognizance of the offence but will always be either when a complaint is made to
a superior officer in the department or to the police. Both these authorities
are free to inquire into the accusation. It is only when the departmental
enquiry or the police investigation leads to the conclusion that the matter is
fit for going to Court that a complaint would be made or a police report would
be submitted Io the proper Court for taking action against the Magistrate. It
is at this stage that the Magistrate would be accused of the offence for the
purposes of the Court and therefore it would be then that the Court will see
whether the person proceeded against is a Magistrate or not.
This view finds further support from the
language of the clauses (a) and (b). The previous sanction, according to these
clauses, will be of the Central Government if the Magistrate is employed in
connection with the affairs of the Un ion and of the State Government if he is
employed in connection with the affairs of a State. If the person is not
employed, no sanction is necessary. Whether the person is so employed or not,
is to be seen shortly before the submission of the complaint or police report
to the Court.
The sanction can be given by the proper
authority on a consideration of the allegations and evidence available to
establish them and therefore only after the investigation is complete. The
submission of the 455 complaint or police report is expected to follow the
grant of sanction within a reasonable time.
A similar question arose in S. A.
Venkataraman v. The State (1) in connection with the interpretation of the
provisions of s. 6 of the Prevention of Corruption Act, 1947 (Act II of 1947).
Sub-section (1) of that section reads:
"(1) No Court shall take cognizance of
an offence punishable under s. 161 or s. 165 of the Indian Penal Code or under
subsection (2) of section 5 of this Act, alleged to have been committed by a
public servant except with the previous sanction- (a) in the case of a person
who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central
Government, of the Central Government;
(b) in the case of a person who is employed
in connection with the affairs of a State and is not removable from his office
save by or with the sanction of the State Government, of the State Government;
(c) in the case of any other person, of the
authority competent to remove him from his office." This Court said at p.
1046:
"The words in s. 6(1) of the Act are
clear enough and they must be given effect to.
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........ A public servant who has ceased to be a public servant is not
a person removable from any office by a competent authority." The same can
be said with respect to the provisions of s.
197 of the Code of Criminal Procedure. We therefore
hold that no previous sanction is necessary for a Court to take cognizance of
an offence committed (1) [1958] S.G.R. 1037- 456 by a Magistrate while acting
or purporting to act in the discharge of his _official duty if he had ceased to
be a Magistrate at the time the complaint is made or police report is submitted
to the Court, i.e., at the time of the taking of cognizance of the offence
committed. We accordingly dismiss the appeal.
Appeal dismissed.
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