Manohar Nath Kaul Vs. State of Jammu
& Kashmir [1983] INSC 43 (19 April 1983)
MISRA RANGNATH MISRA RANGNATH DESAI, D.A.
CITATION: 1983 SCR (2) 791 1983 SCC (3) 429
1983 SCALE (1)399
ACT:
Criminal Procedure Code-s. 197 (1)-Public
Servant charged with the offence of cheating-When sanction for prosecution
necessary ?
HEADNOTE:
Section 197 (1) of the Code of Criminal
Procedure provides that when a 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 duties no court shall take cognizance of such offence
without the previous sanction of the appropriate government.
The appellant, who was Regional Officer of
the Directorate of Field Publicity of the Government of India, travelled by air
by obtaining air tickets in lieu of exchange orders. Under the rules, the cost
of these tickets was required to be excluded from the T.A. bills. On the
allegation that the appellant submitted T.A. bills including the cost of these
tickets and received payment for the same, a prosecution report was submitted
against him for the offence of cheating under s. 420, I.P.C. The appellant
pleaded that in the absence of sanction under s. 197 of the Code of Criminal
Procedure the prosecution was not maintainable. Trial Court rejected the
contention. High Court upheld the order in revision.
On appeal the appellant contended that the
furnishing of the bills and the drawing of the allowance were integrally
connected with his status of being a public servant and must, therefore, be
taken to be covered by sub- s. (1) of s. 197.
Dismissing the appeal,
HELD: The appellant was not entitled to claim
the protection of s. 197(1). [799 H, 800 A] The umbrella of protection under s.
197(1) is available to a public servant in respect of offences alleged to have
been committed while acting or purporting to act in the discharge of his
official duty. 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. [793 G, 797 B-D] 792 If the acts complained of are so integrally
connected with the duties attaching to the office as to be inseparable from
them, then sanction under 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 no sanction
would be required.
[795 B-C] Where a public servant commits the
offence of cheating or abets another 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. [799 F] Srivastava v. Misra,
[1970] 2 S.C.C. 56; Amrik Singh v. State of Pepsu, [1955] 1 S.C.R. 1302; K. Satwant
Singh v. The State of Punjab, [1960] 2 S.C.R. 89; Baijnath Gupta & Ors. v.
The State of Madhya Pradesh, [1966] 1 S.C.R. 211;
Hori Ram Singh v. Emperor, [1939] F.C.R. 159;
Bakhshish Singh Dhaliwal v. State of Punjab, [1967] 1 S.C.R. 211;
Harihar Prasad etc. v. State of Bihar, [1972]
3 S.C.C. 89;
B. Saha & Ors. v. M.S. Kochar, [1980] 1
S.C.R. 111, referred to.
In the instant case, drawing of T.A. bills
cannot be said to have been directly and reasonably connected with appellant's
duty as Regional Officer of the Directorate and the official status furnished
the opportunity for doing the acts which constitute ingredients of the offence.
[799 H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 677 of 1680.
Appeal by Special leave from the Judgment and
Order dated the 7th August, 1980 of the Jammu & Kashmir High Court in
Criminal Revision No. 6 of 1979.
T.C. Mehta and Meera Agarwal for the
Appellant.
Altaf Ahmed for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. In this appeal by special leave, the short question for
consideration is, if sanction under section 197, Code of Criminal Procedure
('Code' for short) is necessary for the prosecution of the appellant for an
offence of cheating punishable under section 420 of the Indian Penal Code.
Appellant was Regional Officer of the
Directorate of Field Publicity of the Government of India in 1972. He travelled
by air from Srinagar to Delhi to and fro on one occasion and from Srinagar to
Jammu to and fro on two other occasions by obtaining air tickets in 793 lieu of
exchange orders. The cost of the tickets obtained by the appellant was
debitable to the account of the Directorate and under the rules the appellant
was required to exclude the same from the bills for travelling allowance.
On the allegation that the appellant
submitted bills including the air fare and received payment for the same, a
prosecution report was submitted against him for the offence of cheating under
s. 420, I.P.C. in the Court of the Chief Judicial Magistrate of Srinagar. The
appellant took the plea that in the absence of sanction under s. 197 of the
Code, the prosecution was not maintainable. The trying Magistrate rejected the
contention and the High Court upheld the order in a revision at the instance of
the appellant.
Section 197 (1) of the Code provides:
"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..."
Undoubtedly, the section is designed to facilitate an effective and unhampered
performance of official duty by public servants by making provision for
scrutiny into allegations against them by superior authorities and prior
sanction for prosecution as a condition precedent to the cognizance of cases
against them by courts so that protection may be available from frivolous,
vexatious or false prosecutions for offences alleged to have been committed by
them while acting or purporting to act in the discharge of their official duty.
As pointed out by this Court in Srivastava v. Misra,(1) the umbrella of
protection is available in respect of offences alleged to have been committed
while acting or purporting to act in the discharge of official duty. It is the
contention of the appellant that qua public officer the appellant submitted the
impugned bills and has drawn the travelling 794 allowance. According to him,
the furnishing of the bills and the drawing of the allowance are integrally
connected with his status of being a public servant and must, therefore, be
taken to be covered by the two phrases occurring in sub-s.
(1) of s. 197 of the Code.
We are of the view that the submission
advanced on behalf of the appellant is totally without any basis and has to be
rejected. The state of the law as laid down by this Court in several precedents
may usefully be referred to in support of this conclusion. In Amrik Singh v.
State of Pepsu,(1) the accused was a sub-Divisional Officer in the Public Works
Department of Pepsu. It was a part of his duties to disburse the wages to
workmen employed in certain works at a place called Karhali. The procedure
usually followed was that he drew the amount required from the Treasury and
disbursed the amount to the employees against their signatures or thumb
impressions in the monthly acquittance roll. Payment was shown to have been
made to one Parma for the month of April 1951. The Sub-Divisional Officer was
prosecuted on the allegation that Parma was non- existent and the thumb
impression in the acquittance roll was of the accused himself. This had been
done with a view to misappropriating the wages said to have been paid to the
workman. Before a three Judge Bench of this Court on behalf of the appellant
the conviction was challenged for want of sanction under s. 197 (1) of the Code
in respect of the offences punishable under ss. 409 and 465 of the Penal Code.
Referring to certain decided cases,
Venkatarama Ayyar, J.
spoke for the Court thus:
"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 795 stage of the grant of sanction, which must precede the
institution of the prosecution".
It was further said:
"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 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".
The conviction was set aside in that case on
a finding that the preparation of the acquittance roll and the disbursement of
the money were integrally connected with the official duties of the
Sub-Divisional Officer, and without sanction the prosecution was not
maintainable.
The question of sanction arose again in the
case of K. Satwant Singh v. The State of Punjab,(1) and on this occasion before
a Constitution Bench. Connected with the rehabilitation programme in Burma
after the Japanes invasion during the Second World War, certain works were
undertaken - some to be executed by the Army and others were entrusted to
contractors. The appellant was one of such contractors and claimed payment for
work done and on his request payments were made through cheques which were
encashed at Lahore. The Government of Burma looked into the claims again on
account of suspicion and discovered that some of the claims were false and
payment therefor was not due. The contractor was therefore, charged for an
offence under s 420, I.P.C. and some of the officers connected with the
payments were charged under s. 420/109, I.P.C. Imam, J. spoke for the
Constitution Bench thus:
"Henderson was charged with
intentionally aiding the appellant in the Commission of an offence punishable
796 under s. 420 of the Indian Penal Code by falsely stating as a fact, in his
reports that the appellant's claims were true and that statement had been made
knowing all the while that the claims in question were false and fraudulent and
that he had accordingly committed an offence under s. 420/109, Indian Penal
Code. 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 s. 161 of the Indian Penal
Code, is one of them and 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 duties of a public servant the official status furnishing only the
occasion or opportunity for the commission of the offences (vide Amrik Singh's
case). The act of cheating or abetment thereof has no reasonable connection
with the discharge of 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".
(underlining is ours) The Court held that the
protection under s. 197 of the Code was not available.
The authority in Satwant Singh's case has
never been challenged in this Court and as the offence of cheating was involved
therein, the ratio of the aforesaid case which is binding on us would have been
ordinarily sufficient for the disposal of this appeal. We would, however, like
to refer to some of the later decisions of this Court so that a full view of
the judicial opinion on the question may be available.
In Baijnath Gupta & Ors. v. The State of
Madhya Pradesh,(1) the Chief Accountant-cum-Office Superintendent in an
Electric Supply 797 Undertaking run by the Government of erstwhile State of
Madhya Bharat was prosecuted for offences punishable under ss. 477A and 409,
I.P.C. It was contended before this Court that the offences had been committed
in the discharge of official duty and in the absence of prior sanction the
conviction was not maintainable. The majority quoted with approval the
following observations of Lord Simonds in Hori Ram Singh v. Emperor :(1)
"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 in virtue of his
office.." The Court proceeded to say:
"It is not every offence committed by
public servant that requires sanction for prosecution under 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. 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 s. 197 of the Criminal
Procedure Code will be attracted. An offence may be entirely unconnected with
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." 798 The facts
of Bakhshish Singh Dhaliwal v. State of Punjab,(1) were similar to Satwant
Singh's case. Bakhshish Singh was also a contractor engaged in the
rehabilitation work in Burma after the Second World War and on a similar set of
allegations as in that case he was prosecuted along with public officers for
the offence of cheating. The ratio in Satwant Singh's case was quoted with full
approval and sanction was held to be wholly unnecessary. It was held that the
act of abetting the principal offenders could not possibly be held to have been
done in the discharge of official duties as public servants. The question of
sanction arose again for consideration in the case of Hairhar Prasad etc. v.
State of Bihar,(2) in the backdrop of prosecution of six public servants for
offences punishable under ss. 120A, 120B and 409 of the Indian Penal Code. The
Court reiterated the dictum in Amrik Singh's case (supra) where it had been
said:
"It is not every offence committed by a
public servant that requires sanction for prosecution under 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 would be claimed to have been done
by virtue of the office, then sanction would be necessary".
Testing the facts on the basis of this dictum
the Court came to the conclusion that want of sanction was no bar to the
prosecution.
In B. Saha & Ors. v. M.S. Kochar,(3) a
three Judge Bench dealt with the same submission advanced on behalf of certain
officers of the Customs Department convicted for offences punishable under ss.
120B, 166 and 409 of the Penal Code. Sarkaria, J. speaking for the Court
observed:
"In sum, the sine qua non for the
applicability of this section is that the offence charged, be it one of
commission or omission, must be one which has been committed by the pubic
servant either in his official capacity or under colour of the office held by him"
799 The rule in Amrik Singh's case was quoted with approval.
It was observed:
"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) of the Code, 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 reasonably connected with his
official duty will require sanction for prosecution under the said
provision".
We are of the definite view that the rule
quoted above from Amrik Singh's case correctly lays down the legal proposition
as to inovocability of the protection under s.
197 (1) of the Code. The observations of
Imam, J. in Satwant Singh's case that there could be 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 dischrage 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 offences, is also the correct exposition of the law. It
has not been contended before us that official duty of the appellant was to
draw travelling allowance bills though his status as a public servant
authorised him to draw such bills. Drawing of T.A. bills cannot be said to have
been directly and reasonably connected with appellants duty as Regional Officer
of the Directorate and the official status furnished the opportunity for doing
the acts which constitute ingredients of the offence. He was, therefore, not
entitled 800 to claim the protection of s. 197 (1) of the Code. The prosecution
is not vitiated for want of sanction. The appeal has, therefore, to be
dismissed.
The prosecution was laid about 8 years back
and on the plea of want of sanction the matter has been dragged on for such a
long time at different stages. We, therefore, direct that the trial court shall
proceed to conclude the trial expeditiously in accordance with law.
H.S.K. Appeal dismissed.
Back
