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Saturday, January 15, 2011

AIR 1997 SUPREME COURT 2102

Sanction for prosecution-Fabrication of record and misappropriation of public fund by public servant-Is not his official duty-Sanction for his prosecution for alleged offence, not necessary. S 197(1) of Cr.P.C.

CASE NO.:

Appeal (crl.) 318 of 1997

PETITIONER:

SAMBHOO NATH MISRA

RESPONDENT:

STATE OF U.P. AND ORS.

DATE OF JUDGMENT: 14/03/1997

BENCH:

K. RAMASWAMY & G.T. NANAVATI

JUDGMENT:

JUDGMENT

ORDER

1997 (2) SCR 1139

The following Order of the Court was delivered .

Leave granted. We have heard learned counsel on both sides.

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.

The appellant had laid a private complaint against R.D.Tripathi, the second

respondent, for offences under Section 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 and amount

of Rs. 443.90 which was due and payable to him. On the basis thereof, after

recording his evidence and also of 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 procescution of

this accused". In support of it, the learned Judge-relied upon Hari Ram v.

Emperor, (1939) F.C.R. p. 159, Onll'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 is law?

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

require-ment 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 the performance of 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 alleged offence cannot be

proceeded with in the trial, The sanction of the appropriate Government or

competent authority would be necessary to protect a public servant from

needless harassment or prosecu-tion. 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 presecution

demoralizes the honest officer. The requirernent of sanction by competent

authority of appropriate Government is an as-surance and protection to the

honest officer who does his official duty to further public interest

However, performance of Official duty Under colour of public authority

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 finding that

the crime and the official duty are not integrally connected.

The question is ; when the public servant is alleged to have com-mitted the

offence of fabrication of record or rnisapproprialion of public fund etc.,

can he be said to have acted in discharge of his official duties? It is not

the official duty of the public servant to fabricate the fake 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 inter linked 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.

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 therefor, the learned Magistrate was right in his conclusion that the respondent had not com-mitted 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 the need for sanction and as to whether the sanction

becomes necessary under Section 197 (1) of Cr, P. C.

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.


--

Haider Ajaz

www.supremecourtofindia.nic.in


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