Romesh
Lal Jain Vs. Naginder Singh Rana & Ors [2005] Insc 618 (28 October 2005)
S.B. Sinha & R.V. Raveendran S.B. SINHA, J :
How far a sanction against a public servant for commission of an offence
punishable under 13(2) of the Prevention of Corruption Act, 1988 (for short,
'the 1988 Act') and Sections 409, 167, 218, 419, 420, 465, 468 and 471 of the
Indian Penal Code is essential is in question in this appeal, which arises from
a judgment and order dated 06.05.2002 passed by the High Court of Punjab and Haryana
in Criminal Misc. No.39904-M of 2002 allowing an application filed by the First
Respondent herein under Section 482 of the Code of Criminal Procedure (for
short, Cr. P.C.). The First Respondent herein at the material time was a Sub
Inspector posted in Police Station Kotwali in the District of Faridkot. He in
his said capacity purported to have lodged a First Information Report against
M/s Jain Gas Agency, a proprietary concern of the son of the Appellant, under
Section 7 of the Essential Commodities Act, wherein it was alleged that on an
inspection made in its office and godown several irregularities were found and
furthermore some gas cylinders were said to have been sold in black market. The
Appellant, who is also the District Convener, LPG Dealers Association,
Faridkot, in a letter dated 31.08.1992 addressed to the Inspector General of
Police, Internal Vigilance, Punjab, Chandigarh, alleged that the case
registered was false, that while seizing 767 cylinders, the First Respondent
had shown that only 743 cylinders were seized and thereby misappropriated 24
cylinders and that the First Respondent had demanded and taken a sum of
Rs.20,000/- in cash from the Appellant by way of illegal gratification by
putting pressure and the said amount was paid to him in order to avoid
maltreatment at his hands. The payment so made was shown in the cash book and
the ledger maintained by M/s Jain Gas Agency. The prosecution against the said
M/s Jain Gas Agency under Section 7 of the Essential Commodities Act was found to
be false and a final report under Section 173 Cr. P.C. was submitted for
cancellation of the case which was accepted on 11.8.1993.
On the basis of the said allegations contained in Appellant's letter dated
31.8.1992, a First Information Report was lodged . However, upon investigation
an untraced report was sent to the Court of Hardian Singh, Special
Judge,Faridkot, who did not agree therewith and by an order dated 23.05.1998
opined that the statements of the witnesses recorded during investigation supported
the case of the complainant and the matter required judicial verdict. The
learned Special Judge, therefore, directed the Investigating Officer to obtain
sanction for the prosecution against the Respondent herein and submit a final
report. The said order dated 23.05.1998 came to be challenged by the First
Respondent herein in a Criminal Revision which was marked as Criminal Revision
No.1100 of 1998 before the Session Judge wherein it was observed that no
cognizance could be taken by the Special Judge without obtaining proper
sanction and it would be open to the Sanctioning Authority to consider the
same. In the meanwhile, the Respondent was promoted as Inspector. The Deputy
Inspector General of Police, Jallandhar Range, issued an order of sanction on
or about 04.02.1999, which is in the following terms :
"Therefore, now I Suresh Arora, IPS Deputy Inspector General of Police,
Jalandhar Range, Jalandhar having powers to dismiss the SI (now Inspector)
Naginder Singh Rana No.50/PR from service, grant sanction under section 197 of
Cr.P.C. and under section 13(2) P.C. Act, 88 so that the competent court may
take legal action against him for the above offence." However the said
order of sanction was withdrawn by the State in terms of an order dated 10.12.1999
as contained in a letter addressed to the Additional Director General of
Police, Crime Punjab, Chandigarh, which is as under :
"2. Under section 197 Cr. P.C. only Government is competent to accord
prosecution sanction.
Therefore, the prosecution accorded by the Deputy Inspector General of
Police, Jalandhar Range, Jalandhar, issued vide his order dt. 4.2.99 is hereby
cancelled.
3. On the careful perusal of the enquiry report of Special Investigation
Cell of the Crime Branch and all other documents supplied by you, the
Government does not find fit case to accord prosecution sanction in the present
case." The learned Special Judge by an order dated 18.04.2000 directed the
Investigating Officer to submit a final report within one month, opining :
"The perusal of the record reveals that accused Naginder Singh Rana was
Sub Inspector in the police department when the offence was allegedly committed
by him. The authority which was competent to grant sanction being punishing
authority is Deputy Inspector General, Special Secretary, Department of Home,
Punjab Chandigarh, was nothing to do with the sanction. As the Deputy Inspector
General of Police, Jalandhar Range, Jalandhar, was the competent authority
being punishing authority and has already granted sanction to prosecute the
accused, it could not be cancelled in such a camouflage way. Apart from it,
only sanction is required u/s 13 (2) of the P.C. Act, and not under section 197
Cr.P.C. Even otherwise, the sanction has already been obtained. Therefore, I do
not agree at all with the Investigating Officer. There being statements of the
witnesses supporting the case of the complainant and the sanction has already
been granted by the competent authority, it is desirable that the judicial
verdict should come. So after preparing the challan and completing all
formalities, the Investigating Officer is directed to submit the final report
in view of the above observations, preferably within one month." The
aforementioned order came to be questioned by the First Respondent herein by
filing a Criminal Revision Application before the Punjab and Haryana High
Court, which was marked as Criminal Revision No.575 of 2000 and by an order
dated 23.07.2001, the said application was disposed of, stating :
"Under these circumstances, the time bound directions of learned
Special Judge deserve to be set aside.
Therefore, the direction given in the impugned order is hereby quashed. The
investigating agency shall be at liberty to continue the investigation and
proceed in accordance with law." Thereafter, a charge-sheet was filed and
cognizance of the offence was taken. The First Respondent filed an application
before the High Court purported to be under Section 482 of the Code of Criminal
Procedure, 1973 (for short, Cr.P.C.), inter alia, praying for quashing of the
First Information Report dated 06.05.1994 and the proceedings subsequent
thereto including the report submitted under Section 173 Cr. P.C. which had
been filed without obtaining sanction.
The High Court by reason of the impugned judgment, referring to the earlier
proceedings culminating in order dated 23.07.2001 observed :
"Three consequences flow from other order dated 23.07.2001 passed in
Criminal Revision No.515 of 2000.
Firstly, the time-bound directions given by the Special Judge, Faridkot, in
order dated 18.04.2000 to the Investigating Officer to submit final report
within a period of one month, were set aside; secondly, the impugned order had
also the effect of setting aside the observations of the Special Judge to the
effect that the Deputy Inspector General of Police is the authority competent
to grant sanction, being the punishing Authority for prosecution of
petitioner-accused and that the Department of Home, Punjab, Chandigarh, had
nothing to do with the sanction for that reason, it could not be cancelled, and
thirdly, the Investigating Agency was given liberty to continue with the
investigation and proceed in accordance with law" It was observed : (i)
The said order dated 23.07.2001 attained finality and, thus, any contention
contrary thereto or inconsistent therewith would amount to reviewing thereof
which is impermissible in law; (ii) The State having refused to grant a
sanction and as the accusations made against the Respondent related to
discharge of his duties as Investigating Officer, sanction of prosecution was
mandatory; (iii) The First Information Report cannot be quashed as it cannot be
said that the allegations made therein do not disclose any offence against him.
On the aforementioned grounds, the order of the learned Special Judge taking
cognizance and summoning the Respondent without sanction of the competent
authority for his prosecution was quashed.
The complainant is, thus, in appeal before us.
Mr. Neeraj Kumar Jain, the learned counsel appearing on behalf of the
Appellant would submit : (i) The High Court committed a manifest error in
passing the impugned judgment insofar as it failed and/or neglected to
determine the question as to whether the act complained of had a reasonable
nexus with the official duty of the Respondent; (ii) The High Court misread and
misinterpreted its earlier order dated 23.07.2001; (iii) The order of sanction
dated 04.02.1999 having been passed by a competent authority for prosecution of
the Respondent for commission of offences punishable both under the 1988 Act as
also various offences under the Indian Penal Code, the State could not have
cancelled the same.
Mr. K.T.S. Tulsi, the learned Senior Counsel appearing on behalf of the
Respondent would, on the other hand, submit that the purpose of enacting the
provisions under Section 197 Cr. P.C. being to protect acts of the public
servants in discharge of the public duty, the State was the only competent
authority to grant or refuse sanction for their prosecution.
Drawing our attention to a notification dated 05.05.1983, which is annexed
to the counter affidavit filed by the State, it was pointed out that by reason
thereof, the requirement of obtaining sanction in terms of sub-section (3) of
Section 197 Cr. P.C. had been extended to all the police officers charged with
maintenance of public order. The allegations made against the Respondent by the
Appellant herein being consisting of : (i) raiding of godown; (ii) seizure of
467 cylinders; (iii) lodging a First Information Report under the Essential
Commodities Act; must be held to have been performed in the process of
discharge of his official duty, and, thus, the alleged acts of misappropriation
of 24 cylinders and acceptance of a bribe of Rs.20,000/- paid by the
complainant for avoiding maltreatment, mandatorily require an order of
sanction. Motive of an officer, it was contended, in this behalf, would be
irrelevant. The learned counsel referring to the order of the learned Special
Judge dated 23.05.1998 would also argue that an order of sanction which would
mean a valid sanction was found to be required and in view of the fact that the
order of sanction passed by the Deputy Inspector General of Police was set
aside by the State and moreover it having refused to grant any sanction, no
valid order of sanction exists. The Deputy Inspector General of Police, Mr.
Tulsi would argue, evidently had no jurisdiction to grant sanction under
Section 197 Cr. P.C., wherefor the State was the only competent authority and,
thus, the said order was rightly cancelled because the same was a composite
one.
Sanction required under Section 197 Cr. P.C. and sanction required under the
1988 Act stand on different footings. Whereas sanction under the Indian Penal
Code in terms of the Code of Criminal Procedure is required to be granted by
the State; under the 1988 Act it can be granted also by the authorities
specified in Section 19 thereof.
It is not in dispute that the Deputy Inspector General of Police was the
competent authority for grant of sanction as against the Respondent herein in
terms of the provisions of the 1988 Act. The State of Haryana, thus, could not
have interfered with that part of the said order whereby requisite sanction had
been granted under the 1988 Act. The contention of Mr. Tulsi to the effect that
the order of sanction passed by the Deputy Inspector General of Police dated
04.02.1999 was a composite one and, thus, the State could cancel the same, does
not appeal to us. Offences under the Penal Code and offences under the 1988 Act
are different and distinct. On the face of the allegations made against the
Respondent, they do not have any immediate or proximate connection. The test
which is required to be applied in such a case is as to whether the offences
for one reason or the other punishable under the Penal Code is also required to
be proved in relation to offences punishable under the 1988 Act. If the answer
to the said question is rendered in the negative, the same test can be applied
in relation to a matter of sanction.
The High Court in its impugned order, however, does not appear to have taken
that aspect of the matter into consideration. It failed to make a distinction
between an order of sanction required for prosecuting a person for commission
of an offence under the Penal Code and an order of sanction required for
commission of an offence under the 1988 Act.
It is also beyond any cavil of doubt that an order granting or refusing
sanction must be preceded by application of mind on the part of the appropriate
authority. If the complainant or accused can demonstrate such an order granting
or refusing sanction to be suffering from non-application of mind, the same may
be called in question before a competent court of law. Evidently, the
requirement of obtaining a sanction under Section 197 Cr. P.C. from the State
in relation to the Respondent who at the material time was a Sub Inspector of
Police might not have arisen if the notification issued by the State in this
behalf on or about 05.05.1983 is read in proper context, which is as under :
"No.3124-211 (1)-83/7773 In exercise of the powers conferred by
sub-section (3) of Section 197 Code of Criminal Procedure, 1973 (Central Act 2
of 1974), the Governor of Punjab is pleased that the provisions of sub- section
(2) of the said Section shall apply to serving police officials of all ranks of
the Punjab Police force charged with the maintenance of Public Order." The
expression 'public order' has a distinct connotation. Investigation into the
offence under the Essential Commodities Act may not be equated with the
maintenance of public order as is commonly understood. The activities of a
single individual giving rise to irregularities of maintenance of books of
accounts as regard an essential commodity or resorting to the black marketing,
unless a volatile situation arises therefrom, cannot lead to disturbance of
public peace, safety and tranquility, which are essential requisites of a
'public order'.
The said notification is, therefore, has no application in the facts and
circumstances of the case and consequently it has to be held that no sanction
by the State in terms of Section 197 Cr. P.C. was necessary as the Respondent
could be removed from service by the Deputy Inspector General of Police and not
by or with the sanction of the Government.
Furthermore the rival contentions of the parties are also required to be
considered in the fact situation of the case. It is one thing to say that while
discharging the official duties, the Government servant exceeds his right but
it is another thing to say that the allegations made against a public servant
has no reasonable nexus therewith.
In Shreekantiah Ramayya Munipalli vs. The State of Bombay [1955 (1) SCR
1177], whereupon Mr. Tulsi placed a strong reliance, it was held :
"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 official's 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.
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 word offence".
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. 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 the dishonest doing of an official act, but
in either event the act was official because the second accused 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." The factual matrix in that case was that three accused
therein were Government servants, who were in charge of a depot containing
stores worth several lacs of rupees. Some iron stores were said to have been
handed over to the agent of the approver. The charge against them that they
being in charge of those stores and to whom they had been entrusted in various
capacities, entered into a conspiracy to defraud Government of the properties
and pursuant thereto they arranged to sell them to the approver for a sum of
Rs.4,000/- .
In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of
Investigation [(2001) 6 SCC 704], a three-Judge Bench of this Court upon
noticing Shreekantiah Ramayya Munipalli (supra) and Matajog Dobey (supra) laid
down the law in the following terms :
"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; maybe 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 a 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." However, in State of
U.P. vs. M.P. Gupta, [(2004) 2 SCC 349] upon, inter alia, noticing Shreekantiah
Rammayya Munipalli (supra) and Amrik Singh vs. State of Pepsu [(1955) 1 SCR
1302], in a case where offences alleged against a public servant were under
Sections 406, 409, 467, 468 and 471 IPC , this Court held :
"21. That apart, the contention of the respondent that for offences
under Sections 406 and 409 read with Section 120-B IPC sanction under Section
197 of the Code is a condition precedent for launching the prosecution is
equally fallacious. This Court has stated the legal position in Shreekantiah
Ramayya Munipalli case and also Amrik Singh case that it is not every offence
committed by a public servant which requires sanction for prosecution under
Section 197 of the Code, nor even every act done by him while he is actually
engaged in the performance of his official duties. Following the above legal
position it was held in Harihar Prasad v. State of Bihar as follows: (SCC p.
115, para 66) "As far as the offence of criminal conspiracy punishable
under Section 120-B, read with Section 409 of the Indian Penal Code is
concerned and also Section 5(2) of the Prevention of Corruption Act are
concerned, they cannot be said to be of the nature mentioned in Section 197 of
the Code of Criminal Procedure. To put it shortly, it is no part of the duty of
a public servant, while discharging his official duties, to enter into a
criminal conspiracy or to indulge in criminal misconduct.
Want of sanction under Section 197 of the Code of Criminal Procedure is,
therefore, no bar." 22. Above views are reiterated in State of Kerala v.
V.
Padmanabhan Nair Both Amrik Singh and Shreekantiah were noted in that case.
Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc;
forgery for the purpose of cheating and using as genuine a forged document
respectively. It is no part of the duty of a public servant while discharging
his official duties to commit forgery of the type covered by the aforesaid
offences. Want of sanction under Section 197 of the Code is, therefore, no
bar." In N. Bhargavan Pillai (dead) by LRs. and Another vs. State of
Kerala [AIR 2004 SC 2317], it was held "12. As noted in State of H.P. v.
M.P. Gupta (JT 2003 (10) SC 32), sanction under Section 197 of the Code is not
a condition precedent for an offence under Section 409 IPC." A Bench of
this Court, however, in State of Orissa through Kumar Raghvendra Singh and
Others vs Ganesh Chandra Jew [(2004) 8 SCC 40], wherein an allegation was made
against six officers of the Orissa Forest Department that they had falsely
implicated the complainant for offences punishable under the Orissa Forest Act
and the Wild Life (Protection) Act, 1972, and being not content with the said
illegal acts, they seriously assaulted him and thereby committed offences
punishable under Sections 341, 323, 325, 506 and 386 read with Section 34 IPC,
was of the opinion :
"Use of the expression "official duty" implies that the act
or omission must have been done by the public servant in the course of his
service and that it should have been in discharge of his duty. The section does
not extend its protective cover to every act or omission done by a public
servant in service but restricts its scope of operation to only those acts or
omissions which are done by a public servant in discharge of official duty.
11. It has been widened further by extending protection to even those acts
or omissions which are done in purported exercise of official duty. That is,
under the colour of office. Official duty therefore implies that the act or
omission must have been done by the public servant in the course of his service
and such act or omission must have been performed as part of duty which further
must have been official in nature. The section has, thus, to be construed
strictly while determining its applicability to any act or omission in the
course of service. Its operation has to be limited to those duties which are
discharged in the course of duty. But once any act or omission has been found
to have been committed by a public servant in discharge of his duty then it
must be given liberal and wide construction so far as its official nature is
concerned. For instance, a public servant is not entitled to indulge in
criminal activities. To that extent the section has to be construed narrowly
and in a restricted manner. But once it is established that the act or omission
was done by the public servant while discharging his duty then the scope of its
being official should be construed so as to advance the objective of the
section in favour of the public servant. Otherwise the entire purpose of
affording protection to a public servant without sanction shall stand
frustrated. For instance, a police officer in discharge of duty may have to use
force, which may be an offence for the prosecution of which the sanction may be
necessary. But if the same officer commits an act in the course of service but
not in discharge of his duty and without any justification therefor then the
bar under Section 197 of the Code is not attracted. To what extent an act or
omission performed by a public servant in discharge of his duty can be deemed
to be official was explained by this Court in Matajog Dobey v. H.C. Bhari thus:
(AIR 1956 SC 44, paras 17 & 19) "The offence alleged to have been
committed (by the accused) must have something to do, or must be related in
some manner, with the discharge of official duty. There must be a reasonable
connection between the act and the discharge of official duty; the act must
bear such relation to the duty that the accused could lay a reasonable (claim),
but not a pretended or fanciful claim, that he did it in the course of the
performance of his duty." The said decision was relied upon by another
Bench in S.,K. Zutshi and Another vs Bimal Debnath and Another [(2004) 8 SCC
31], holding that when the complaint was that illegal gratification was
demanded and accepted, the shop was ransacked and goods were taken away, no
sanction would be required.
However, a somewhat different view was taken in K. Kalimuthu vs State by DSP
[(2005) 4 SCC 512] wherein the allegation made against the Appellant was that
he was guilty of various offences punishable under the Indian Penal Code as
also under the 1988 Act. It was held :
"12. If on facts, therefore, it is prima facie found that the act or
omission for which the accused was charged had reasonable connection with
discharge of his duty then it must be held to be official to which
applicability of Section 197 of the Code cannot be disputed." It was
further observed :
"15. The question relating to the need of sanction under Section 197 of
the Code is not necessarily to be considered as soon as the complaint is lodged
and on the allegations contained therein. This question may arise at any stage
of the proceeding. The question whether sanction is necessary or not may have
to be determined from stage to stage. Further, in cases where offences under
the Act are concerned, the effect of Section 197, dealing with the question of
prejudice has also to be noted." Matajog Dobey vs. H.C. Bhari [1955 (2)
SCR 925] is a decision rendered by a Constitution Bench of this Court. In that
case search of the premises was made by the officers of the Income Tax
Department. They were authorized to make the search and they had with them a
warrant issued by the Commissioner for the said purpose. Allegedly, they broke
open the door, went inside, interfered with some books and drawers of tables,
tied the complainant with a rope and assaulted, causing injuries.
Chandrasekhara Aiyar J., speaking for the Constitution Bench was of the opinion
:
"The objection based on entry into the wrong premises is of no
substance; it is quite probable that the warrant specified 17 instead of P-17
by a bona fide mistake or error; or it may be that the party made an honest
mistake. As a matter of fact, the account books, etc. were found in P-17, the
premises raided.
Slightly differing tests have been laid down in the decided cases to
ascertain the scope and the 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". But the
difference is only in language and not in substance. 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
to determine 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 we must 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 the official duty, though
possibly in excess of the needs and requirements of the situation." In
B.S. Sambhau vs T.S. Krishnaswamy [(1983) 1 SCC 11], relying on Matajog Dobey
(supra), this Court held that defamatory language used by a judge to an
advocate does not attract the requirement of Section 197 Cr.
P.C.
In Om Prakash Gupta vs State of U.P.[1957 SCR 423], another Constitution
Bench of this Court distinguished offences punishable under the 1988 Act and
the Criminal Breach Trust, stating :
"These two offences can co-exist and the one will not be considered as
overlapping the other. A course of conduct can be proved when a person is
arraigned under ss.5(1)(a) and 5(1)(b), but such a course is impossible to be
let in evidence when an offence under ss. 161 and 162 is being enquired into or
tried. Similarly there are a number of elements which can be proved in an
inquiry or trial under s. 5(1)(c) that cannot be let in by the prosecution when
a person is charged for an offence under s. 405 of the Indian Penal Code. In s.
405 of the Indian Penal Code the offender must willfully suffer another person
to misappropriate the property entrusted, but in s. 5(1)(c) if he allows
another person to dishonestly or fraudulently misappropriate or otherwise
convert for his own use any property so entrusted, then it is an offence. There
is a vast difference between willfully suffering another and allowing a person
to do a particular thing and in our view the word "allows" is much
wider in its import. Wilfully pre-supposes a conscious action, while even by
negligence one can allow another to do a thing.
It seems to us, therefore, that the two offences are distinct and separate"
In Manohar Nath Kaul vs. State of Jammu & Kashmir [(1983) 3 SCC 429], this
Court was of the opinion that cheating by drawing T.A. does not answer the test
of connection between the act in the discharge of official duty and the
performance of the official duty and, thus, sanction for prosecution under
Section 420 I.P.C. was not required.
In B. Saha and Others vs. M.S. Kochar [(1979) 4 SCC 177] relied upon by Mr.
Tulsi, the accused had tampered with, broke the seal of the consignment seized
by them and removed some of the goods and, thus, abused their position, this
Court applying the test laid down by the Federal Court in Dr. Hori Ram vs.
Emperor [1939 FCR 159 : AIR 1939 FC 43] that 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, opined :
"This, however, should not be understood as an invariable proposition
of law. The question, as already explained, depends on the facts of each case.
Cases are conceivable where on their special facts it can be said that the act
of criminal misappropriation or conversion complained of is inseparably
intertwined with the performance of the official duty of the accused and
therefore, sanction under Section 197(1) of the Code of Criminal Procedure for
prosecution of the accused for an offence under Section 409, Indian Penal Code
was necessary." It was further held :
"In the light of all that has been said above, we are of opinion that
on the facts of the present case, sanction of the appropriate Government was
not necessary for the prosecution of the appellants for an offence under
Sections 409/120-B, Indian Penal Code, because the, alleged act of criminal
misappropriation complained of was not committed by them while they were acting
or purporting to act in the discharge of their official duty, the commission of
the offence having no direct connection or inseparable link with their duties
as public servants. At the most, the official status of the appellants
furnished them with an opportunity or occasion to commit the alleged criminal
act." We may furthermore notice that in some cases, for example, State of
Maharashtra vs. Atma Ram and Others [AIR 1966 SC 1786] Baijnath Gupta and
Others vs. The State of Madhya Pradesh [1966 (1) SCR 210 and Harihar Prasad,
etc. vs. State of Bihar [(1972) 3 SCC 89], having regard to the fact situation
obtaining therein, this Court opined that the order of sanction for prosecution
of the Government Servant was not necessary.
In Om Prakash Gupta (supra), the Constitution Bench observed "The last
argument of Mr. Isaacs is that despite the fact tat the prosecution is under
s.409 of the Indian Penal Code, still sanction to prosecute is necessary. Quite
a large body of case law in all the High Courts has held that a public servant
committing criminal breach of trust does not normally act in his capacity as a
public servant, see (a) The State v. Panduran Baburao (supra) (b) Bhup Narain
Saxena vs. State (supra) (c) State vs. Gulab Singh, AIR (1954) Raj. 211.
We are in agreement with the view expressed by Hari Shankar and Randhir
Singh JJ. that no sanction is necessary and the view expressed by Mull J. to
the contrary is not correct.," Abdul Wahab Ansari vs. State of Bihar and
Another [(2000) 8 SCC 500] is another decision whereupon Mr. Tulsi relied upon,
wherein in regard to a dispute between two sets of Mohammedan residents,
allegation of encroachment of the property belonging to a mosque was made by
one group against the other and while removing the encroachment several
miscreants armed with weapons started hurling stones and as the situation
became out of control, the appellant therein gave order for opening fire and on
that basis said to have committed offences punishable under Section 302, 307,
380, 427, 504, 147, 148 and 149 of the Indian Penal Code; this Court framed the
following question :
"Whether in the facts and circumstances of the present case, is it
possible for the Court to come to a conclusion that the appellant was
discharging his official duty and in course of such discharge of duty, ordered
for opening of fire to control the mob in consequence of which a person died
and two persons were injured and in which event, the provisions of Section 197
of the Code of Criminal Procedure can be held to be attracted?" The said
question was answered in the following terms :
"Coming to the second question, it is now well settled by the
Constitution Bench decision of this Court in Matajog Dobey v. H.C. Bhari that
in the matter of grant of sanction under Section 197 of the Code of Criminal
Procedure the offence alleged to have been committed by the accused must have
something to do, or must be related in some manner, with the discharge of
official duty. In other words, there must be a reasonable connection between
the act and the discharge of official duty; the act must bear such relation to
the duty that the accused could lay a reasonable claim, but not a pretended or
fanciful claim, that he did it in the course of the performance of his duty. In
the said case it had been further held that where a power is conferred or a
duty imposed by 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 said decision, therefore, has no
application in the facts and circumstances of this case.
In Harihar Prasad (supra), it was held :
"The real question therefore is whether the acts complained of in the
present case were directly concerned with the official duties of the three
public servants. As far as the offence of criminal conspiracy punishable under
Section 120-B, read with Section 409 of the Indian Penal Code is concerned and
also Section 5(2) of the Prevention of Corruption Act, are concerned they
cannot be said to be of the nature mentioned in Section 197 of the Code of
Criminal Procedure. To put it shortly, it is no part of the duty of a public
servant, while discharging his official duties, to enter into a criminal
conspiracy or to indulge in criminal misconduct" The upshot of the
aforementioned discussions is that whereas an order of sanction in terms of
Section 197 Cr. P.C. is required to be obtained when the offence complained
against the public servant is attributable to discharge of his public duty or
has a direct nexus therewith, but the same would not be necessary when the
offence complained has nothing to do with the same. A plea relating to want of
sanction although desirably should be considered at an early stage of the
proceedings, but the same would not mean that the accused cannot take the said
plea or the court cannot consider the same at a later stage. Each case has to
be considered on its own facts. Furthermore, there may be cases where the
question as to whether the sanction was required to be obtained or not would
not be possible to be determined unless some evidence is taken, and in such an
event, the said question may have to be considered even after the witnesses are
examined.
The raid and seizure in the office and godown of the Appellant were made on
18.03.1992. Seizure of gas cylinders and the lodgment of the First Information
Report are no doubt acts of official capacity; but undoubtedly the prosecution
was withdrawn on the ground that the same was false. It is in the
aforementioned context also the question of criminal breach of trust and other
allegations made as also demand and acceptance of a sum of Rs.20,000/- may have
to be viewed.
The contention of Mr. Tulsi that the order dated 23.05.1998 attained
finality and, thus, at a later stage a view could have been taken that
obtaining of any sanction was not necessary, is fallacious. In the said order
dated 23.05.1998, the Special Judge did not say that the sanction would be
necessary in terms of Section 197 Cr. P.C. In his order dated 23.05.1998 , the
learned Judge clarified that obtaining of sanction was necessary from the
Sanctioning Authority/Punishing Authority which would obviously refer to the
necessity of an order of sanction under the 1988 Act. We, therefore, do not
find any inherent contradiction in the said orders. The High Court was not also
correct in coming to the conclusion that the earlier order of the High Court
passed on 23.07.2001 resulted in three consequences. By reason of the said
order, as noticed supra, only that portion of the order of the learned Special
Judge whereby a direction was issued to complete the investigation within one
month was quashed and not the entire order.
The other two consequences inferred by the High Court in the impugned order
were, therefore, wholly unwarranted.
Furthermore, the statements purported to have been made on behalf of the
prosecution that an order of sanction has to be obtained would not mean that
the complainant has no locus to raise a question that in relation to the
offences punishable under the Penal Code, no order of sanction was necessary to
be obtained.
The question as to whether an order of sanction would be found essential
would, thus, depend upon the facts and circumstances of each case.
In a case where ex facie no order of sanction has been issued when it is
admittedly a pre-requisite for taking cognizance of the offences or where such
an order apparently has been passed by the authority not competent therefor,
the court may take note thereof at the outset. But where the validity or
otherwise of an order of sanction is required to be considered having regard to
the facts and circumstances of the case and furthermore when a contention has
to be gone into as to whether the act alleged against the accused has any
direct nexus with the discharge of his official act, it may be permissible in a
given situation for the court to examine the said question at a later stage.
We may hasten to add that we do not intend to lay down a law that only
because a contention has been raised by the complainant or the prosecution that
the question as regard necessity of obtaining an order of sanction is dependent
upon the finding of fact that the nexus between the offences alleged and the
official duty will have to be found out upon analyzing the evidences brought on
records; the same cannot be done at an earlier stage. What we intend to say is
that each case will have to be considered having regard to the fact situation
obtaining therein and no hard and fast rule can be laid down therefor.
We have come across cases where the question of validity of sanction has
been raised at the trial and the courts have passed appropriate orders upon
arriving at a conclusion that the order of sanction was defective. [See State
of Karnataka through CBI vs. C. Nagarajaswamy JT 2005 (12) SC 349].
The question as to whether sanction is necessary or not, thus, in an
appropriate case, may have to be determined at different stages. [See Raj
Kishor Roy vs .Kamleshwar Pandey and Another (2002) 6 SCC 543].
The State before us has, however, taken a stand different from one taken
before the High Court, as it was submitted that it was not a case where there
was no valid order of sanction for prosecution of the First Respondent under
the 1988 Act and, thus, the entire question should be directed to be considered
at a later stage.
Having regard to the facts and circumstances of the case and keeping in view
the decision of this Court, we are of the opinion that no order of sanction to
prosecute the First Respondent under Section 197 Cr. P.C. was necessary to be
obtained from the State.
The High Court was, thus, not right in passing the impugned order
particularly in view of the fact that a valid order of sanction was granted in
relation to the offences committed by the First Respondent under the 1988 Act.
The impugned order of the High Court, therefore, cannot be sustained, which is
set aside accordingly.
The appeal is allowed. No costs.
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