Shambhoo Nath Misra Vs. State of U.P. & Ors.
EmailAppeal: Civil Appeal No.318 of 1997
(Arising out of SLP (C) No.3967 of 1995)
(From the Judgment and Order dated 31.7.95 of the Allahabad High Court in Crl.R.No. 985 of 1993)
(Arising out of SLP (C) No.3967 of 1995)
(From the Judgment and Order dated 31.7.95 of the Allahabad High Court in Crl.R.No. 985 of 1993)
Petitioner: Shambhoo Nath Misra
Respondent: State of U.P. & Ors.
Apeal: Civil Appeal No.318 of 1997
(Arising out of SLP (C) No.3967 of 1995)
(From the Judgment and Order dated 31.7.95 of the Allahabad High Court in Crl.R.No. 985 of 1993)
(Arising out of SLP (C) No.3967 of 1995)
(From the Judgment and Order dated 31.7.95 of the Allahabad High Court in Crl.R.No. 985 of 1993)
Judges: K. RAMASWAMY & G.T. NANAVATI, JJ.
Date of Judgment: Mar 14, 1997
Appearances:
P.N. Singh, Mohan Pandey, Advocates for the Appellant.
M.C.Dhingra, Kamakshi Singh, and Mehlwal, Advocates for the Respondents.
Head Note:
CRIMINAL LAW
Code of Criminal Procedure
Section 197 (1) – Public Servant – Prosecution of – Previous sanction of Govt. – Held essential requirement is that offence alleged against public servant must have been done while acting in discharge of his official duties – Requirement of sanction is an assurance and protection to the honest officer who does public duty to further public interest – However where the charge is of fabrication of the record and misappropriation of the public funds, the offences is not part of official duty and no sanction is required – High Court decision held to be illegal but no opinion expressed on merits.
Code of Criminal Procedure
Section 197 (1) – Public Servant – Prosecution of – Previous sanction of Govt. – Held essential requirement is that offence alleged against public servant must have been done while acting in discharge of his official duties – Requirement of sanction is an assurance and protection to the honest officer who does public duty to further public interest – However where the charge is of fabrication of the record and misappropriation of the public funds, the offences is not part of official duty and no sanction is required – High Court decision held to be illegal but no opinion expressed on merits.
Held:
The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant’s act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be,applies its mind and records a finding that the crime and the official duty are not integrally connected.
It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.
We desist to go into that aspect. It is made clear that we have not expressed any opinion on merits of the case. We have only dealt with the contention as to the need for sanction and as to where the sanction becomes necessary under Section 197(1) of Cr.P.C. (Para 4, 5 & 6)
Cases Reffered:
1. B. Saha v. M.S. Kochhar 1979 A.C.C. (16) 318 (Para 3)
2. Hari Ram v. Emperor 1939 F.C.R. p.159 (Para 3)
2. Hari Ram v. Emperor 1939 F.C.R. p.159 (Para 3)
JUDGEMENT:
O R D E R
1. Leave granted. We have heard learned counsel on both sides.
2. This appeal by special leave arises from the judgment and order of the learned Single Judge of Allahabad High Court, made on September 31, 1995 in Criminal Revision No.985 of 1993.
3. The appellant had laid a private complaint against R.D. Tripathi, the second respondent, for offences under Sections 409, 420, 465, 468, 477A and 109 I.P.C., after examination, alleging that the second respondent and the Cashier had fabricated his signatures, drawn and misappropriated an amount of Rs.443.90 which was due and payable to him. On the basis thereof, after recording his evidence and also the court witness under Section 202 Cr.P.C. 1973, the Magistrate dismissed the complaint holding that the sanction under Section 197 of the Cr.P.C. was not obtained. Aggrieved by the order, the appellant went in revision before the High Court. The High Court recorded the finding that the second respondent was discharging his duties as a Government servant and was alleged to have misappropriated the amount in question by forging the signature of the appellant in the payment register. The High Court further observed that “the offence alleged to have been committed by the respondent is related in some manner with the discharge of his official duties. There is reasonable connection between the act and discharge of his official duty. Under these circumstances, sanction under Section 197, Cr.P.C. is necessary before prosecution of this accused”. In support of it, the learned Judge relied upon Hari Ram v. Emperor (1939 F.C.R. p.159), Orill’s case (1948 Law Reporter 75 Indian Appeal 41) and the case of B. Saha v. M.S. Kochhar (1979 A.C.C. (16) 318). The question is: whether the view taken by the trial Court as upheld by the High Court for the aforesaid reason is correct in law?
4. Section 197(1) postulates that “when any person who is 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 of the appropriate Government/authority”. The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant’s act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be,applies its mind and records a finding that the crime and the official duty are not integrally connected.
5. The question is: when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.
6. The learned counsel for the respondent, Mr. Dhingra, has contended that the Magistrate came to the conclusion that it was not a part of the duty of the respondent to deal with either the preparation of the record or payment thereof. It was the duty of the Cashier and, therefore, the learned Magistrate was right in his conclusion that the respondent had not committed any offence. We desist to go into that aspect. It is made clear that we have not expressed any opinion on merits of the case. We have only dealt with the contention as to the need for sanction and as to where the sanction becomes necessary under Section 197(1) of Cr.P.C.
7. The appeal is accordingly allowed to the above extent. The order of the Magistrate dismissing the complaint is set aside. The complaint stands restored. The Magistrate is directed to proceed further in accordance with the law and deal with the case on merits.
1. Leave granted. We have heard learned counsel on both sides.
2. This appeal by special leave arises from the judgment and order of the learned Single Judge of Allahabad High Court, made on September 31, 1995 in Criminal Revision No.985 of 1993.
3. The appellant had laid a private complaint against R.D. Tripathi, the second respondent, for offences under Sections 409, 420, 465, 468, 477A and 109 I.P.C., after examination, alleging that the second respondent and the Cashier had fabricated his signatures, drawn and misappropriated an amount of Rs.443.90 which was due and payable to him. On the basis thereof, after recording his evidence and also the court witness under Section 202 Cr.P.C. 1973, the Magistrate dismissed the complaint holding that the sanction under Section 197 of the Cr.P.C. was not obtained. Aggrieved by the order, the appellant went in revision before the High Court. The High Court recorded the finding that the second respondent was discharging his duties as a Government servant and was alleged to have misappropriated the amount in question by forging the signature of the appellant in the payment register. The High Court further observed that “the offence alleged to have been committed by the respondent is related in some manner with the discharge of his official duties. There is reasonable connection between the act and discharge of his official duty. Under these circumstances, sanction under Section 197, Cr.P.C. is necessary before prosecution of this accused”. In support of it, the learned Judge relied upon Hari Ram v. Emperor (1939 F.C.R. p.159), Orill’s case (1948 Law Reporter 75 Indian Appeal 41) and the case of B. Saha v. M.S. Kochhar (1979 A.C.C. (16) 318). The question is: whether the view taken by the trial Court as upheld by the High Court for the aforesaid reason is correct in law?
4. Section 197(1) postulates that “when any person who is 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 of the appropriate Government/authority”. The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant’s act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be,applies its mind and records a finding that the crime and the official duty are not integrally connected.
5. The question is: when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.
6. The learned counsel for the respondent, Mr. Dhingra, has contended that the Magistrate came to the conclusion that it was not a part of the duty of the respondent to deal with either the preparation of the record or payment thereof. It was the duty of the Cashier and, therefore, the learned Magistrate was right in his conclusion that the respondent had not committed any offence. We desist to go into that aspect. It is made clear that we have not expressed any opinion on merits of the case. We have only dealt with the contention as to the need for sanction and as to where the sanction becomes necessary under Section 197(1) of Cr.P.C.
7. The appeal is accordingly allowed to the above extent. The order of the Magistrate dismissing the complaint is set aside. The complaint stands restored. The Magistrate is directed to proceed further in accordance with the law and deal with the case on merits.
