P K Pradhan
Vs. The State of Sikkim [2001] Insc 329 (24 July 2001)
G.B.
Pattanaik, S.N. Phukan & B.N. Agrawal B.N.Agrawal, J.
In
this appeal by Special Leave, order passed by Sikkim High Court, in Criminal
Revision Application dismissing the same after holding that no sanction under
Section 197 of the Code of Criminal Procedure, 1974 (hereinafter referred to as
the Code) is required for prosecution of the appellant and thereby upholding
order passed by the Special Judge refusing to drop the prosecution in the
absence of sanction under Section 197 of the Code, has been impugned.
A
First Information Report was lodged for prosecution of Shri Nar Bahadur Bhandari,
the then Chief Minister of Sikkim, and the appellant who was the then Secretary
of Rural Development Department, Government of Sikkim, besides certain
contractors under Sections 120-B of the Indian Penal Code read with Section
5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947
(hereinafter referred to as the 1947 Act) which correspond to Section 13(2)
read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
(hereinafter referred to as the 1988 Act) and the prosecution case, in short,
was that during the year 1983-84, the State Cabinet of Sikkim decided to
implement 36 Rural Water Supply Schemes in the State of Sikkim under minimum
needs programme for a total cost of Rs. 1,62,31,630/- and while approving the
above proposal the Cabinet specifically decided that the works worth more than Rs.
1,00,000/- shall be put to open tender while works below Rs.1,00,000/- shall be
executed through Panchayat nominees. The approval of the State Cabinet was
communicated to the Rural Development Department for necessary follow up action
for implementation of these schemes. In order to implement 19 of the schemes,
the Department issued tender notice on 19-12-1983 inviting sealed tenders from
enlisted contractors having resources and experience in such government works.
In
response to this notice various tenders were received by the Department and the
same were opened on 18th
January, 1984 by a
tender committee. Necessary action for acceptance/rejection of tender then
followed in respective files. It was alleged that when the matter was thus
being processed, Shri Nar Bahadur Bhandari, the then Chief Minister of Sikkim, Shri
P.K.Pradhan, the then Secretary, Rural Development Department, Government of Sikkim
who is the appellant in this appeal along with fifteen contractors, named in
the First Information Report, entered into a criminal conspiracy with the
object of securing contract works in favour of the said contractors by corrupt
or illegal means or by otherwise abusing the position of the then Chief
Minister and the appellant as public servant and got the works awarded in favour
of contractors aforesaid at low rates thereby causing pecuniary advantage and
corresponding loss to the State of Sikkim, by various commissions and
omissions.
After
registering the case, the matter was duly investigated and charge sheet was
submitted against the appellant and the aforesaid accused who was the then
Chief Minister of Sikkim under Section 5(2) read with Section 5(1)(d) of the
1947 Act corresponding to Section 13(2) read with Section 13(1)(d) of the 1988
Act. Charge sheet was also submitted against the aforesaid two official accused
persons besides fifteen contractors referred to above for their prosecution
under Section 120-B of the Indian Penal Code read with Section 5(2) read with
Section 5(1)(d) of the 1947 Act corresponding to Section 13(2) read with Section
13(1)(d) of the 1988 Act. It may be stated that before cognizance was taken
upon the charge sheet, the then Chief Minister Shri Nar Bahadur Bhandari ceased
to continue as such and the appellant ceased to be public servant. By order
dated 14th September,
1994, the Special
Judge took cognizance and summoned all of the aforesaid accused persons
including the appellant. On behalf of the appellant, who was Secretary,
Department of Rural Development, Government of Sikkim at the time of commission
of the alleged offence, a preliminary objection was raised before the Special
Judge to the effect that his prosecution under Section 120-B of the Indian
Penal Code read with Sections 5(2) and 5(1)(d) of the 1947 Act was not
warranted as he being a public servant at the relevant time, sanction was
required under Section 197 of the Code and the same having not been obtained,
the prosecution for these offences was not fit to continue. Similar objection
was taken on behalf of another accused-Shri Nar Bahadur Bhandari, the then
Chief Minister of Sikkim. The Special Judge by order dated
17th November, 1998 rejected the preliminary objection and held that no
sanction was required. Challenging the aforesaid order, the appellant and the
aforesaid Shri Nar Bahadur Bhandari moved Sikkim High Court by filing separate
revision applications which having been dismissed by the impugned order holding
that no sanction under Section 197 of the Code was required, the present appeal
by Special Leave.
Shri L.Nageswara
Rao, learned Senior Counsel appearing on behalf of the appellant, submitted
that act of the appellant complained of had reasonable connection with the
discharge of official duty and both were so inter-woven that one could not be
separated from the other, as such for prosecuting the appellant, sanction was
required under Section 197 of the Code and the High Court was not justified in
holding otherwise. Learned Counsel, however, did not challenge continuance of
the prosecution of the appellant under Section 5(2) read with Section 5(1)(d)
of the 1947 Act which corresponds to Section 13(2) read with Section 13(1)(d)
of the 1988 Act as no sanction for prosecution under Section 6 of the 1947 Act
and Section 19 of the 1988 Act was required in view of the fact that before the
date of taking cognizance, the appellant ceased to be public servant inasmuch
as under the aforesaid sections, sanction is required only if, on the date of
cognizance, accused was continuing to be public servant and not otherwise. On
the other hand, Shri P.P.Malhotra, learned Senior Counsel appearing on behalf
of the Central Bureau of Investigation and Shri A.Mariarputham, learned counsel
appearing on behalf of the State of Sikkim, submitted that acts of the accused
complained of, had absolutely no connection with the discharge of official duty
inasmuch as commission of offence of conspiracy can never be treated to be in
discharge of official duty, therefore, no sanction for prosecution under
Section 197 of the Code was at all required. In view of the rival contentions,
the only question that arises is as to whether sanction for prosecution of the
appellant was required under Section 197 of the Code for offences punishable
under Section 120-B of the Indian Penal Code and with Sections 5(2 ) and
5(1)(d) of 1947 Act. .
The
legislative mandate engrafted in sub section (1) of Section 197 debarring a
court from taking cognizance of an offence except with the previous sanction of
the Government concerned in a case where the acts complained of are alleged to
have been committed by a public servant in discharge of his official duty or
purporting to be in the discharge of his official duty and such public servant
is not removable from office save by or with the sanction of the Government
touches the jurisdiction of the court itself. It is a prohibition imposed by
the statute from taking cognizance.
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 under Section 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
later 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
situation.
In the
case of Hori Ram Singh v. The Crown, 1939 Federal Court Reports 159, question
was considered as to whether the protection under Section 197 of the Code can
be confined only to such acts of the public servant which are directly in
pursuance of his public office, though in excess of the duty or under a
mistaken belief as to the existence of such duty. In that case, while laying
down the law, Sulaiman, J., observed thus at page 178:- The section cannot be
confined to only such acts as are done by a public servant directly in
pursuance of his public office, though in excess of the duty or under a
mistaken belief as to the existence of such duty.
It was
further observed thus at page 179:- Of course, if the case as put forward fails
or the defence establishes that the act purported to be done in execution of
duty, the proceedings will have to be dropped and the complaint dismissed on
that ground.
The
view taken by Sulaiman, J. has been approved by the Privy Council in H.H.B.Gill
and another v. The King, AIR 1948 Privy Council 128, where the Court laid down
the law at page 133 which runs thus:- 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.
[Emphasis
added] In the case of Shreekantiah Ramayya Munipalli v. The State of Bombay,
1955(1) SCR 1177, the view taken by the Privy Council in the case of Hori Ram
Singh (supra) had been approved and this Court observed that Section 197 of the
Code should not be construed in such a narrow way so that the same can never be
applied. In the said case, Vivian Bose, J. speaking for the Court laid down
thus at page 1186 :- Now it is obvious that if section 197 of the Code of
Criminal Procedure is construed too narrowly it can never be applied, for of
course it is no part of an officials duty to commit an offence and never can be.
But it is not the duty we have to examine so much as the act, because an
official act can be performed in the discharge of official duty as well as in
dereliction of it. The section has content and its language must be given
meaning.
[Emphasis
added] In the case of Amrik Singh v. The State of Pepsu, 1955(1) SCR 1302, upon a detailed
discussion, this Court was of the view that if the discharge of official duty
and the act of the accused complained of are inseparable, sanction under
Section 197 of the Code would be necessary.
Venkatarama
Ayyar, J., speaking for the Court observed at page 1307-08 which runs thus:- 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.
[Emphasis
added] In the case of Matajog Dobey v. H.C.Bhari, 1955(2) SCR 925, a cONSTITUTION
bENCH OF THIS cOURT CLEARLY LAID DOWN THat where a power is conferred or a duty
is imposed by a statute or otherwise and there is nothing said expressly
inhibiting the exercise of the power or the performance of the duty by any
limitations or restrictions, it is reasonable to hold that it carries with it
the power of doing all such acts or employing such means as are reasonably
necessary for such execution because it is a rule that when the law commands a
thing to be done, it authorises the performance of whatever may be necessary
for executing its command.
The
Court was considering in the said case the allegation that the official authorised
in pursuance of a warrant issued by the Income Tax Investigation Commission in
connection with certain pending proceedings before it, forcibly broke open the
entrance door and when some resistance was put, the said officer not only
entered forcibly but tied the person offering resistance with a rope and
assaulted him causing injuries and for such an act, a complaint had been filed
against the public officers concerned. This Court, however, held in that case
that such a complaint cannot be entertained without sanction of the competent
authority as provided under Section 197 of the Code. The Court had observed
that before arriving at a conclusion whether the provisions of Section 197 of
the Code will apply, the court must conclude that there is a reasonable
connection between the act complained of and the discharge of official duty;
the act must bear such relation to the duty that the accused could lay a
reasonable, but not a pretended or fanciful claim, that he did it in the course
of the performance of his duty.
In the
case of Baijnath Gupta and others v. The State of Madhya Pradesh, 1966(1) SCR
210, it has been observed that in relation to charge under Sections 477-A/109
of the Indian Penal Code, sanction is necessary under Section 197 of the Code
as the same was committed within the scope of official duties though may be in
dereliction of them.
In
Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others, (1998) 1 SCC
205, relying upon Matajog Dobey case (supra) and bearing in mind the
legislative mandate engrafted in sub-section (1) of Section 197 debarring a
court from taking cognizance of an offence except with previous sanction of the
Government concerned, this Court has laid down that the said provision is a
prohibition imposed by the statute from taking cognizance and, as such,
exercising jurisdiction of the court in the matter of taking cognizance and,
therefore, a court will not be justified in taking cognizance of the offence
without such sanction on a finding that the acts complained of are in excess of
the discharge of the official duty of the government servant concerned.
In the
case of Abdul Wahab Ansari v. State of Bihar and another, (2000) 8 SCC 500,
while considering the scope of Section 197 of the Code, this Court observed at
page 507 which runs thus:- We have no hesitation to come to the conclusion that
the appellant had been directed by the Sub-Divisional Magistrate to be present
with police force and remove the encroachment in question and in course of
discharge of his duty to control the mob, when he had directed for opening of fire,
it must be held that the order of opening of fire was in exercise of the power
conferred upon him and the duty imposed upon him under the orders of the
Magistrate and in that view of the matter the provisions of Section 197(1)
applies to the facts of the present case.
In the
case of K.Satwant Singh v. The State of Punjab, 1960(2) SCR 89, a Constitution
Bench of this Court observed that some offences cannot by their vary nature be
regarded as having been committed by public servant while acting or purporting
to act in the discharge of their official duty. For instance, acceptance of
bribe, an offence punishable under Section 161 of the Indian Penal Code is one
of them and offence of cheating and abetment thereof is another. Likewise,
another Constitution Bench in the case of Om Prakash Gupta v. State of U.P.,
1957 SCR 423, observed that a public servant committing criminal breach of
trust does not normally act in his public capacity as such no sanction is
required for such an act.
Thus,
from a conspectus of the aforesaid decisions, it will be clear that for
claiming protection under Section 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 under Section 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 under Section 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 decide 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 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 be decided in the main judgment
which may be delivered upon conclusion of the trial.
In the
present case, the accused is claiming that in awarding contract in his capacity
as Secretary, Department of Rural Development, Government of Sikkim, he did not
abuse his position as a public servant and works were awarded in favour of the
contractor at a rate permissible under law and not low rates. These facts are
required to be established which can be done at the trial. Therefore, it is not
possible to grant any relief to the appellant at this stage. However, we may
observe that during the course of trial, the court below shall examine this
question afresh and deal with the same in the main judgment in the light of law
laid down in this case without being prejudiced by any observation in the
impugned orders.
For
the foregoing reasons, the appeal fails and is accordingly dismissed.
J.
[
G.B.PATTANAIK ] J.
[
S.N.PHUKAN ] J.
[
B.N.AGRAWAL ] NEW DELHI, JULY 24, 2001.
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