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CASE NO.:

Appeal (crl.) 339 of 1997

Appeal (crl.) 351 of 1997

PETITIONER:

State of H.P.

RESPONDENT:

M.P.Gupta

DATE OF JUDGMENT: 09/12/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

These two appeals are interlinked as the point involved revolves

round the scope and ambit of Section 197 of the Code of Criminal

Procedure, 1973 (for short the 'Code'). The Himachal Pradesh High Court

by the impugned judgment held that in the absence of requisite sanction

in terms of Section 197 of the Code proceedings initiated against the

respondent (hereinafter referred to as the 'Accused') cannot proceed.

Two proceedings were initiated against the accused, one was for alleged

commission of offences punishable under Section 120-B, Section 420 read

with Section 511 of the Indian Penal Code, 1860 (for short the 'IPC'),

Section 5(2) (1) (d) of the Prevention of Corruption Act, 1947 (for

short the 'Old Act') corresponding to Section 13(1)(d) of the Prevention

of Corruption Act, 1988 (for short the 'New Act'). The Special Judge

(Forests), Shimla, directed the accused to be charged accordingly by his

order dated 5.8.1995. In the other case charges were framed against the

accused on 15.11.1995 for the offence punishable under Section 467, 468,

471, 420, 120-B IPC and Section 5(2) (1) (d) of the Old Act

corresponding to Section 13 (1)(d) of the New Act.

Sheaving out unnecessary details, the accusations leading to the

framing of charges are as under:-

The Controller of Stores, Himachal Pradesh had approved a rate

contract for the purchase of galvanized steel barbed wires for fencing

at the ex factory rate of Rs.8400/- per M.T. This rate contract was

valid up to the period ending 30.9.1985. No rate contract was approved

in respect of this item for the period beginning 1.10.1985. On

20.10.1985, the Chief Sales Officer and the Executive Officer of H.P.

Agro Industries Corporation wrote two identical letters to the Chief

Conservator of Forests (T), Himachal Pradesh offering to supply barbed

wire/GI wire and U staples to the forest department. The rates quoted

were Rs.10,500/- per M.T. for barbed wire (Hot dip) and Rs.10,000/- per

M.T. for electroplated barbed wire. A request was made to the Chief

Conservator of Forests to direct all the field officers working under

his control to buy their requirements of the above-mentioned items by

placing their supply orders with the H.P. Agro Industries Corporation.

The petitioner, who was then the Chief Conservator of Forests, on

30.10.1985 issued a circular letter to all the Conservator of Forests

working under him advising them to work out their requirements of GI and

barbed wires and in the absence of a rate contract to place orders for

the supply thereof with the H.P. Agro Industries Corporation, who had

offered to make the necessary supply of both these items immediately.

Consequent upon such instructions having been issued by the petitioner,

various forests circles placed the supply orders to the extent of about

1200 M.T. of barbed wire with the H.P. Agro Industries Corporation

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within a period of less than one month. All these orders were booked

through M/s. Gupta Pipes, Industrial Area, Dharampur, District Solan,

who had been appointed as the booking agent by the H.P. Agro Industries

Corporation on 25.10.1985 for the purpose of procuring the supply orders

from various indenting officers. The H.P. Agro Industries Corporation,

vide its letter dated 6.11.1985 had intimated to all Conservators of

Forest in Himachal Pradesh about the firm M/s. Gupta Pipes having been

appointed as their authorized booking agent. They were also intimated

that a representative of the said firm would be visiting their offices

for collecting the necessary supply orders for and on behalf of the H.P.

Agro Industries Corporation.

In the meanwhile, some of the local units manufacturing barbed

wires submitted a complaint to the Minister of State for Forests

complaining against the procurement of barbed wire by the forest

department from the H.P. Agro Industries Corporation in violation of the

normal procedure and without obtaining the requisite non-availability

certificate from the Controller of Stores. It was also complained that

the sources adopted by the H.P. Agro Industries Corporation for

procuring the barbed wire for supply to the forest department were from

the units located at Dharampur. This complaint was forwarded by the

Minister to the accused in his capacity as Chief Conservator of Forests

on 20.11.1985 for his comments. The Additional Controller of Stores on

26.11.1985 also took an objection to the purchases having been effected

by the forest department from the H.P. Agro Industries Corporation

without obtaining the requisite non-availability certificate from the

Controller of Stores. It was also suggested that the supply orders

already placed with the said Corporation may be cancelled forthwith.

Some reports also appeared in the press alleging serious irregularities

in the purchase of barbed wire by the forest department. Instructions

were also issued by the State Government through its Secretary in the

forest department to all the Conservator of Forests in Himachal Pradesh

to cancel all the supply orders in respect of barbed wire/GI wire placed

with the H.P. Agro Industries Corporation. Consequently, against the

supply order of 1200 M.T. placed with H.P. Agro Industries Corporation,

supply of only 17.64 M.T. was actually effected through the Corporation,

before the cancellation could be intimated to the suppliers.

An enquiry committee was appointed by the State Government. The

then Divisional Commissioner who conducted the enquiry reported that

apparent irregularities were committed with the apparent intention to

help M/s. Gupta Pipes. Acting on the recommendations of the Divisional

Commissioner, cases for alleged commission of offences as noted supra

were registered with the Enforcement Branch, South Lane, Simla. One of

the cases was instituted on the basis of informations which surfaced

during investigation. At the time of framing charge, legality of the

proceedings was questioned by the accused. It is to be noted that

sanction was accorded on 13.6.1990 which though was stated to be

unnecessary and inconsequential by the State, in view of its specific

stand that Section 197 of the Code has no application.

Accused took the stand that the absence of sanctions as

contemplated under Section 197 of the Code and Section 6 of the Old Act

(corresponding to Section 19 of the New Act) the proceedings were

nonest. The trial Judge negatived the stand. Accused moved the High

Court for interference. By the impugned judgments dated 5.6.1996 in

Criminal Revision Nos. 105 and 106 of 1995 learned Single Judge of the

High Court held that the charge framed against the accused for the

offence under Sections 467, 468 and 471 IPC were to be set aside and

quashed. The charge in respect of other offences, namely, Sections 420,

120-B IPC and under the Old Act read with the New Act were to be

continued. However, no opinion was expressed about validity of sanction

dated 13.6.1990.

In support of the appeals, learned counsel for the appellant-State

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submitted that the scope and ambit of Section 197 has been misconstrued

by the High Court. Per contra, learned counsel for the accused

submitted that the alleged acts were a part of the official duties and,

therefore, a sanction was mandatory for the purpose of proceeding in the

matter and in the absence thereof at the threshold the proceedings were

not maintainable. Strong reliance was placed on certain observations of

this Court in Shreekantiah Ramayya Munipalli v. The State of Bombay

(1955 (1) SCR 1177) and Amrik Singh v. The State of Pepsu (1955 (1) SCR

1302).

The pivotal issue needs careful consideration. In Bakhshish Singh

Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while

emphasizing on the balance between protection to the officers and the

protection to the citizens observed as follows:-

"It is necessary to protect the public

servants in the discharge of their duties. In the

facts and circumstances of each case protection of

public officers and public servants functioning in

discharge of official duties and protection of

private citizens have to be balanced by finding out

as to what extent and how far is a public servant

working in discharge of his duties or purported

discharge of his duties, and whether the public

servant has exceeded his limit. It is true that s.

196 states that no cognizance can be taken and even

after cognizance having been taken if facts come to

light that the acts complained of were done in the

discharge of the official duties then the trial may

have to be stayed unless sanction is obtained. But at

the same time it has to be emphasised that criminal

trials should not be stayed in all cases at the

preliminary stage because that will cause great

damage to the evidence."

The protection given under Section 197 is to protect responsible

public servants against the institution of possibly vexatious criminal

proceedings for offences alleged to have been committed by them while

they are acting or purporting to act as public servants. The policy of

the legislature is to afford adequate protection to public servants to

ensure that they are not prosecuted for anything done by them in the

discharge of their official duties without reasonable cause, and if

sanction is granted, to confer on the Government, if they choose to

exercise it, complete control of the prosecution. This protection has

certain limits and is available only when the alleged act done by the

public servant is reasonably connected with the discharge of his

official duty and is not merely a cloak for doing the objectionable act.

If in doing his official duty, he acted in excess of his duty, but there

is a reasonable connection between the act and the performance of the

official duty, the excess will not be a sufficient ground to deprive the

public servant from the protection. The question is not as to the

nature of the offence such as whether the alleged offence contained an

element necessarily dependent upon the offender being a public servant,

but whether it was committed by a public servant acting or purporting to

act as such in the discharge of his official capacity. Before Section

197 can be invoked, it must be shown that the official concerned was

accused of an offence alleged to have been committed by him while acting

or purporting to act in the discharge of his official duties. It is not

the duty which requires examination so much as the act, because the

official act can be performed both in the discharge of the official duty

as well as in dereliction of it. The act must fall within the scope and

range of the official duties of the public servant concerned. It is the

quality of the act which is important and the protection of this section

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is available if the act falls within the scope and range of his official

duty. There cannot be any universal rule to determine whether there is

a reasonable connection between the act done and the official duty, nor

is it possible to lay down any such rule. One safe and sure test in

this regard would be to consider if the omission or neglect on the part

of the public servant to commit the act complained of could have made

him answerable for a charge of dereliction of his official duty, if the

answer to his question is in the affirmative, it may be said that such

act was committed by the public servant while acting in the discharge of

his official duty and there was every connection with the act complained

of and the official duty of the public servant. This aspect makes it

clear that the concept of Section 197 does not get immediately attracted

on institution of the complaint case.

At this juncture, we may refer to P. Arulswami v. State of Madras

(AIR 1967 SC 776), wherein this Court held as under:

"... It is not therefore every offence committed by a

public servant that requires sanction for prosecution

under Section 197(1) of the Criminal Procedure Code;

nor even every act done by him while he is actually

engaged in the performance of his official duties;

but if the act complained of is directly concerned

with his official duties so that, if questioned, it

could be claimed to have been done by virtue of the

office, then sanction would be necessary. It is

quality of the act that is important and if it falls

within the scope and range of his official duties the

protection contemplated by Section 197 of the

Criminal Procedure Code will be attracted. An offence

may be entirely unconnected with the official duty as

such or it may be committed within the scope of the

official duty. Where it is unconnected with the

official duty there can be no protection. It is only

when it is either within the scope of the official

duty or in excess of it that the protection is

claimable."

Prior to examining if the Courts below committed any error of law

in discharging the accused it may not be out of place to examine the

nature of power exercised by the Court under Section 197 of the Code and

the extent of protection it affords to public servant, who apart, from

various hazards in discharge of their duties, in absence of a provision

like the one may be exposed to vexatious prosecutions. Section 197(1)

and (2) of the Code reads as under :

"197. (1) When any person who is or was a Judge or

Magistrate or 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 -

(a) in the case of person who is employed or, as the

case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as

the case may be, was at the time of commission of the

alleged offence employed, in connection with the

affairs of a State, of the State Government.

* * *

(2) No Court shall take cognizance of any offence

alleged to have been committed by any member of the

Armed Forces of the Union while acting or purporting

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to act in the discharge of his official duty, except

with the previous sanction of the Central

Government."

The section falls in the chapter dealing with conditions requisite for

initiation of proceedings. That is if the conditions mentioned are not

made out or are absent then no prosecution can be set in motion. For

instance no prosecution can be initiated in a Court of Sessions under

Section 193, as it cannot take cognizance, as a court of original

jurisdiction, of any offence unless the case has been committed to it by

a Magistrate or the Code expressly provides for it. And the jurisdiction

of a Magistrate to take cognizance of any offence is provided by Section

190 of the Code, either on receipt of a complaint, or upon a police

report or upon information received from any person other than police

officer, or upon his knowledge that such offence has been committed. So

far public servants are concerned the cognizance of any offence, by any

court, is barred by Section 197 of the Code unless sanction is obtained

from the appropriate authority, if the offence, alleged to have been

committed, was in discharge of the official duty. The section not only

specifies the persons to whom the protection is afforded but it also

specifies the conditions and circumstances in which it shall be

available and the effect in law if the conditions are satisfied. The

mandatory character of the protection afforded to a public servant is

brought out by the expression, 'no court shall take cognizance of such

offence except with the previous sanction'. Use of the words, 'no' and

'shall' make it abundantly clear that the bar on the exercise power of

the court to take cognizance of any offence is absolute and complete.

Very cognizance is barred. That is the complaint cannot be taken notice

of. According to Black's Law Dictionary the word 'cognizance' means

'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and

determine causes'. In common parlance it means taking notice of. A

court, therefore, is precluded from entertaining a complaint or taking

notice of it or exercising jurisdiction if it is in respect of a public

servant who is accused of an offence alleged to have committed during

discharge of his official duty.

Such being the nature of the provision the question is how should

the expression, 'any offence alleged to have been committed by him while

acting or purporting to act in the discharge of his official duty', be

understood? What does it mean? 'Official' according to dictionary, means

pertaining to an office, and official act or official duty means an act

or duty done by an officer in his official capacity. In B. Saha and Ors.

v. M. S. Kochar (1979 (4) SCC 177) it was held : (SCC pp. 184-85, para

17)

"The words 'any offence alleged to have been committed

by him while acting or purporting to act in the

discharge of his official duty' employed in Section

197(1) of the Code, are capable of a narrow as well as

a wide interpretation. If these words are construed

too narrowly, the section will be rendered altogether

sterile, for, 'it is no part of an official duty to

commit an offence, and never can be'. In the wider

sense, these words will take under their umbrella

every act constituting an offence, committed in the

course of the same transaction in which the official

duty is performed or purports to be performed. The

right approach to the import of these words lies

between two extremes. While on the one hand, it is not

every offence committed by a public servant while

engaged in the performance of his official duty, which

is entitled to the protection of Section 197 (1), an

Act constituting an offence, directly and reasonably

connected with his official duty will require sanction

for prosecution and the said provision."

Use of the expression, 'official duty' implies that the act or omission

must have been done by the public in the course of his service and that

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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.

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 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 course of service. Its operation has to be

limited to those duties which are discharged in 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 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 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

course of service but not in discharge of his duty 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 (AIR 1956 SC 44) thus :

"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."

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 official to which

applicability of Section 197 of the Code cannot be disputed.

In S.A. Venkataraman v. The State (AIR 1958 SC 107) and in C. R.

Bansi v. The State of Maharashtra (1970 (3) SCC 537) this Court has held

that :

"There is nothing in the words used in Section 6(1)

to even remotely suggest that previous sanction was

necessary before a court could take cognizance of the

offences mentioned therein in the case of a person

who had ceased to be a public servant at the time the

court was asked to take cognizance, although he had

been such a person at the time the offence was

committed."

The above position was illuminatingly highlighted in State of

Maharashtra v. Dr. Budhikota Subbarao (1993 (3) SCC 339).

When the newly-worded section appeared in the Code (Section 197)

with the words "when any person who is or was a public servant" (as

against the truncated expression in the corresponding provision of the

old Code of Criminal Procedure, 1898) a contention was raised before

this Court in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411)

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that the legal position must be treated as changed even in regard to

offences under the Old Act and New Act also. The said contention was,

however, repelled by this Court wherein a two-Judge Bench has held thus

:

"A public servant who committed an offence mentioned

in the Act, while he was a public servant, can be

prosecuted with the sanction contemplated in Section

19 of the Act if he continues to be a public servant

when the court takes cognizance of the offence. But

if he ceases to be a public servant by that time, the

court can take cognizance of the offence without any

such sanction."

The correct legal position, therefore, is that an accused facing

prosecution for offences under the Old Act or New Act cannot claim any

immunity on the ground of want of sanction, if he ceased to be a public

servant on the date when the court took cognizance of the said offences.

But the position is different in cases where Section 197 of the Code has

application.

Section 197(1) provides that when any person who is or was 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 on purporting to act in the discharge

of his official duty, no Court shall take cognizance of such offence

except with the previous sanction (a) in the case of a person who is

employed or, as the case may be, was at the time of commission of the

alleged offence employed, in connection with the affairs of the Union,

of the Central Government and (b) in the case of a person who is

employed or, as the case may be, was at the time of commission of the

alleged offence employed, in connection with the affairs of a State, of

the State Government.

We may mention that the Law Commission in its 41st Report in

paragraph 15.123 while dealing with Section 197, as it then stood,

observed "it appears to us that protection under the section is needed

as much after retirement of the public servant as before retirement. The

protection afforded by the section would be rendered illusory if it were

open to a private person harbouring a grievance to wait until the public

servant ceased to hold his official position, and then to lodge a

complaint. The ultimate justification for the protection conferred by

Section 197 is the public interest in seeing that official acts do not

lead to needless or vexatious prosecution. It should be left to the

Government to determine from that point of view the question of the

expediency of prosecuting any public servant". It was in pursuance of

this observation that the expression 'was' come to be employed after the

expression 'is' to make the sanction applicable even in cases where a

retired public servant is sought to be prosecuted.

Above position was highlighted in R. Balakrishna Pillai v. State

of Kerala (AIR 1996 SC 901).

That apart, the contention of the respondent that for offences

under Sections 406 and 409 read with Section 120-B of 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 Munnipalli's case (supra) and also

Amrik Singh's case (supra) 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, etc. v. State of Bihar (1972 (3)

SCC 89) as follows :

"As far as the offence of criminal conspiracy

punishable under Section 120-B, read with Section

409, Indian Penal Code is concerned and also Section

5(2) of the Prevention of Corruption Act is

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

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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."

Above views are reiterated in State of Kerala v. Padmanabhan Nair

(1999 (5) SCC 690). Both Amrik Singh (supra) and Shreekantiah (supra)

were noted in that case. Sections 467, 468 and 471 IPC relate to forgery

of valuable security, Will etc; forgery for 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.

It was submitted by learned counsel for the accused-respondent

that essential ingredients of the aforesaid offences are absent. That

was not the issue before either the trial Court or the High Court. It

is, therefore, unnecessary for us to delve into that question.

Above being the legal position which is fairly well settled, the

High Court's view cannot be maintained on the facts of the case. The

impugned judgments are set aside. We make it clear that our interference

shall not be construed as if we have expressed any opinion on the merits

of the case.

Appeals are allowed to the extent indicated.