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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