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PETITIONER: MANOHAR NATH KAUL

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT19/04/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DESAI, D.A.

CITATION:  1983 SCR  (2) 791        1983 SCC  (3) 429  1983 SCALE  (1)399

ACT:      Criminal  Procedure   Code-s.  197  (1)-Public  Servant charged with  the  offence  of  cheating-When  sanction  for prosecution necessary ?

HEADNOTE:      Section 197  (1) of  the  Code  of  Criminal  Procedure provides that  when a  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 duties no court  shall take  cognizance of such offence without the previous sanction of the appropriate government.      The  appellant,   who  was   Regional  Officer  of  the Directorate of  Field Publicity  of the Government of India, travelled by  air  by  obtaining  air  tickets  in  lieu  of exchange orders.  Under the rules, the cost of these tickets was required  to be  excluded from  the T.A.  bills. On  the allegation that the appellant submitted T.A. bills including the cost of these tickets and received payment for the same, a prosecution  report was  submitted  against  him  for  the offence of  cheating under  s.  420,  I.P.C.  The  appellant pleaded that  in the absence of sanction under s. 197 of the Code  of   Criminal  Procedure   the  prosecution   was  not maintainable. Trial  Court  rejected  the  contention.  High Court upheld the order in revision.      On appeal  the appellant  contended that the furnishing of  the   bills  and  the  drawing  of  the  allowance  were integrally connected  with his  status  of  being  a  public servant and  must, therefore, be taken to be covered by sub- s. (1) of s. 197.      Dismissing the appeal, ^      HELD: The  appellant was  not  entitled  to  claim  the protection of s. 197(1). [799 H, 800 A]      The umbrella of protection under s. 197(1) is available to a  public servant  in respect of offences alleged to have been committed  while acting  or purporting  to act  in  the discharge of his official duty. A public servant can only be said to  act or  to purport  to act  in the discharge of his official duty, if his act is such as to lie within the scope of his  official duty.  The test  may well  be  whether  the public servant,  if challenged,  can reasonably  claim that,

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what he  does, he  does in virtue of his office. [793 G, 797 B-D] 792      If the  acts complained  of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under s. 197(1) would be necessary; but if  there was  no necessary  connection between them and the  performance   of  those  duties,  the  official  status furnishing only  the occasion  or opportunity  for the acts, then no sanction would be required.                                                    [795 B-C]      Where a  public servant commits the offence of cheating or abets  another to  cheat, the offence committed by him is not one  while he  is acting  or purporting  to act  in  the discharge of  his official  duty, as  such  offence  has  no necessary connection  between it  and the performance of the duties of a public servant. [799 F]      Srivastava v. Misra, [1970] 2 S.C.C. 56; Amrik Singh v. State of  Pepsu, [1955]  1 S.C.R.  1302; K. Satwant Singh v. The State  of Punjab,  [1960] 2  S.C.R. 89; Baijnath Gupta & Ors. v.  The State  of Madhya  Pradesh, [1966] 1 S.C.R. 211; Hori Ram  Singh v.  Emperor, [1939]  F.C.R.  159;  Bakhshish Singh Dhaliwal  v. State  of Punjab,  [1967] 1  S.C.R.  211; Harihar Prasad  etc. v.  State of Bihar, [1972] 3 S.C.C. 89; B. Saha & Ors. v. M.S. Kochar, [1980] 1 S.C.R. 111, referred to.      In the  instant case,  drawing of  T.A. bills cannot be said to  have been  directly and  reasonably connected  with appellant’s duty  as Regional Officer of the Directorate and the official  status furnished the opportunity for doing the acts which constitute ingredients of the offence. [799 H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 677 of 1680.      Appeal by  Special leave  from the  Judgment and  Order dated the 7th August, 1980 of the Jammu & Kashmir High Court in Criminal Revision No. 6 of 1979.      T.C. Mehta and Meera Agarwal for the Appellant.      Altaf Ahmed for the Respondent.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. In  this appeal  by special leave, the short  question for  consideration is, if sanction under section 197,  Code of  Criminal Procedure (’Code’ for short) is necessary  for the  prosecution of  the appellant  for an offence of  cheating punishable  under section  420  of  the Indian Penal Code.      Appellant was  Regional Officer  of the  Directorate of Field Publicity  of the  Government of  India  in  1972.  He travelled by  air from  Srinagar to  Delhi to and fro on one occasion and  from Srinagar to Jammu to and fro on two other occasions by obtaining air tickets in 793 lieu of exchange orders. The cost of the tickets obtained by the  appellant   was  debitable   to  the   account  of  the Directorate and  under the  rules the appellant was required to exclude the same from the bills for travelling allowance. On  the   allegation  that  the  appellant  submitted  bills including the  air fare and received payment for the same, a prosecution report was submitted against him for the offence of cheating  under s.  420, I.P.C. in the Court of the Chief Judicial Magistrate of Srinagar. The appellant took the plea that in  the absence  of sanction  under s. 197 of the Code,

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the prosecution  was not maintainable. The trying Magistrate rejected the  contention and the High Court upheld the order in a revision at the instance of the appellant.      Section 197 (1) of the Code provides:           "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 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..."      Undoubtedly, the  section is  designed to facilitate an effective and  unhampered performance  of official  duty  by public  servants  by  making  provision  for  scrutiny  into allegations against  them by  superior authorities and prior sanction for  prosecution as  a condition  precedent to  the cognizance  of   cases  against   them  by  courts  so  that protection may  be available  from frivolous,  vexatious  or false  prosecutions   for  offences  alleged  to  have  been committed by  them while  acting or purporting to act in the discharge of  their official  duty. As  pointed out  by this Court in  Srivastava v. Misra,(1) the umbrella of protection is available  in respect  of offences  alleged to  have been committed while acting or purporting to act in the discharge of official duty. It is the contention of the appellant that qua public  officer the  appellant  submitted  the  impugned bills and has drawn the travelling 794 allowance. According to him, the furnishing of the bills and the drawing  of the  allowance are integrally connected with his status of being a public servant and must, therefore, be taken to  be covered  by the two phrases occurring in sub-s. (1) of s. 197 of the Code.      We are  of the  view that  the submission  advanced  on behalf of the appellant is totally without any basis and has to be  rejected. The  state of  the law as laid down by this Court in  several precedents  may usefully be referred to in support of  this conclusion.  In Amrik  Singh  v.  State  of Pepsu,(1) the  accused was  a sub-Divisional  Officer in the Public Works  Department of  Pepsu. It  was a  part  of  his duties to  disburse the wages to workmen employed in certain works at  a place  called  Karhali.  The  procedure  usually followed was  that he  drew the  amount  required  from  the Treasury and  disbursed the  amount to the employees against their  signatures   or  thumb  impressions  in  the  monthly acquittance roll. Payment was shown to have been made to one Parma for  the  month  of  April  1951.  The  Sub-Divisional Officer was prosecuted on the allegation that Parma was non- existent and  the thumb  impression in  the acquittance roll was of  the accused  himself. This had been done with a view to misappropriating  the wages said to have been paid to the workman. Before  a three Judge Bench of this Court on behalf of the  appellant the  conviction was challenged for want of sanction under  s. 197  (1) of  the Code  in respect  of the offences punishable under ss. 409 and 465 of the Penal Code. Referring to  certain decided  cases, Venkatarama  Ayyar, J. spoke for the Court thus:           "The result  of the authorities may thus be summed      up :  It is  not every  offence committed  by a  public      servant that  requires sanction  for prosecution  under

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    section 197  (1) of the Code of Criminal Procedure; 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;  and that  would  be  so,      irrespective of  whether it  was,  in  fact,  a  proper      discharge of his duties, because that would really be a      matter of defence on the merits, which would have to be      investigated at the trial, and could not arise at the 795      stage of  the grant of sanction, which must precede the      institution of the prosecution".      It was further said:           "In our  judgment, even  when the charge is one of      misappropriation by  a public servant, whether sanction      is required  under section 197 (1) will depend upon the      facts of  each case.  If the  acts complained of are so      integrally connected  with the  duties attaching to the      office as  to be  inseparable from  them, then sanction      under section  197 (1) would be necessary; but if there      was  no  necessary  connection  between  them  and  the      performance  of   those  duties,  the  official  status      furnishing only  the occasion  or opportunity  for  the      acts, then no sanction would be required".      The conviction  was set aside in that case on a finding that  the  preparation  of  the  acquittance  roll  and  the disbursement of the money were integrally connected with the official duties  of the  Sub-Divisional Officer, and without sanction the prosecution was not maintainable.      The question  of sanction arose again in the case of K. Satwant Singh  v.  The  State  of  Punjab,(1)  and  on  this occasion before  a Constitution  Bench. Connected  with  the rehabilitation programme in Burma after the Japanes invasion during the Second World War, certain works were undertaken - some to be executed by the Army and others were entrusted to contractors. The  appellant was  one of such contractors and claimed payment  for work  done and  on his request payments were made through cheques which were encashed at Lahore. The Government of  Burma looked into the claims again on account of suspicion  and discovered  that some  of the  claims were false and  payment therefor  was not due. The contractor was therefore, charged  for an  offence under  s 420, I.P.C. and some of  the  officers  connected  with  the  payments  were charged under  s. 420/109,  I.P.C. Imam,  J. spoke  for  the Constitution Bench thus:           "Henderson was  charged with  intentionally aiding      the  appellant   in  the   Commission  of   an  offence      punishable 796      under s.  420 of  the  Indian  Penal  Code  by  falsely      stating as  a fact, in his reports that the appellant’s      claims were  true and  that  statement  had  been  made      knowing all  the while that the claims in question were      false  and  fraudulent  and  that  he  had  accordingly      committed an  offence under  s. 420/109,  Indian  Penal      Code. It  appears to  us to be clear that some offences      cannot by  their very nature be regarded as having been      committed by public servants while acting or purporting      to act  in the  discharge of  their official  duty. For      instance, acceptance  of a bribe, an offence punishable      under s.  161 of  the Indian Penal Code, is one of them      and  offence  of  cheating  or  abetment  there  of  is      another. We  have no  hesitation in saying that where a

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    public servant commits the offence of cheating or abets      another so  to cheat,  the offence  committed by him is      not one  while he is acting or purporting to act in the      discharge of  his official  duty, as such offences have      no  necessary   connection   between   them   and   the      performance of  the duties  of  a  public  servant  the      official  status   furnishing  only   the  occasion  or      opportunity for  the commission  of the  offences (vide      Amrik Singh’s  case). The  act of  cheating or abetment      thereof has no reasonable connection with the discharge      of official  duty. The  act must  bear such relation to      the duty that the public servant could lay a reasonable      but not  a pretended  or fanciful claim, that he did it      in  the   course  of  the  performance  of  his  duty".      (underlining is ours)      The Court  held that the protection under s. 197 of the Code was not available.      The authority  in Satwant  Singh’s case  has never been challenged in  this Court and as the offence of cheating was involved therein,  the ratio  of the aforesaid case which is binding on  us would have been ordinarily sufficient for the disposal of this appeal. We would, however, like to refer to some of  the later  decisions of  this Court  so that a full view  of  the  judicial  opinion  on  the  question  may  be available.      In Baijnath  Gupta  &  Ors.  v.  The  State  of  Madhya Pradesh,(1) the  Chief Accountant-cum-Office  Superintendent in an Electric Supply 797 Undertaking run  by the  Government of  erstwhile  State  of Madhya Bharat  was prosecuted  for offences punishable under ss. 477A  and 409, I.P.C. It was contended before this Court that the  offences had  been committed  in the  discharge of official duty  and in  the absence  of  prior  sanction  the conviction was  not maintainable.  The majority  quoted with approval the  following observations of Lord Simonds in Hori Ram Singh v. Emperor :(1)           "A public  servant can  only be  said to act or to      purport to  act in  the discharge of his official duty,      if his  act is  such as  to lie within the scope of his      official duty.  Thus, a judge neither acts nor purports      to act  as a  judge in  receiving a  bribe, though  the      judgment which he delivers may be such an act; nor does      a Government medical officer act or purport to act as a      public servant  in picking the pocket of a patient whom      he is  examining though  the examination  itself may be      such an  act. The  test may  well be whether the public      servant, if challenged, can reasonably claim that, what      he does in virtue of his office.."      The Court proceeded to say:           "It is  not  every  offence  committed  by  public      servant that requires sanction for prosecution under s.      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 the quality of the act that      is important and if it falls within the scope and range      of his  official duties  the protection contemplated by      s.  197   of  the   Criminal  Procedure  Code  will  be      attracted. An  offence may be entirely unconnected with      the official  duty. Where  it is  unconnected with  the      official duty  there can  be no  protection. It is only

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    when it is either within the scope of the official duty      or in excess of it that the protection is claimable." 798      The facts  of Bakhshish  Singh  Dhaliwal  v.  State  of Punjab,(1) were  similar to  Satwant Singh’s case. Bakhshish Singh was  also a  contractor engaged  in the rehabilitation work in  Burma after  the Second  World War and on a similar set of  allegations as  in that case he was prosecuted along with public  officers for the offence of cheating. The ratio in Satwant  Singh’s case  was quoted  with full approval and sanction was held to be wholly unnecessary. It was held that the act  of  abetting  the  principal  offenders  could  not possibly be  held to  have been  done in  the  discharge  of official duties as public servants. The question of sanction arose again  for consideration in the case of Hairhar Prasad etc. v. State of Bihar,(2) in the backdrop of prosecution of six public  servants for offences punishable under ss. 120A, 120B and  409 of the Indian Penal Code. The Court reiterated the dictum  in Amrik  Singh’s case (supra) where it had been said:           "It is  not every  offence committed  by a  public      servant that requires sanction for prosecution under s.      197 (1),  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 would be claimed to      have been  done by  virtue of the office, then sanction      would be necessary".      Testing the facts on the basis of this dictum the Court came to  the conclusion  that want of sanction was no bar to the prosecution.      In B.  Saha &  Ors. v.  M.S. Kochar,(3)  a three  Judge Bench dealt  with the  same submission advanced on behalf of certain officers  of the  Customs Department  convicted  for offences punishable under ss. 120B, 166 and 409 of the Penal Code. Sarkaria, J. speaking for the Court observed:           "In sum, the sine qua non for the applicability of      this section  is that the offence charged, be it one of      commission or  omission, must  be one  which  has  been      committed by  the pubic  servant either in his official      capacity or under colour of the office held by him" 799      The  rule   in  Amrik  Singh’s  case  was  quoted  with      approval.      It was observed:           "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      these 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

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    for prosecution under the said provision".      We are  of the definite view that the rule quoted above from Amrik  Singh’s  case  correctly  lays  down  the  legal proposition as  to inovocability  of the protection under s. 197 (1) of the Code. The observations of Imam, J. in Satwant Singh’s case  that there  could be  no hesitation  in saying that where  a public servant commits the offence of cheating or abets  another so  to cheat, the offence committed by him is not  one while  he is  acting or purporting to act in the dischrage of  his official  duty, as  such  offence  has  no necessary connection  between it  and the performance of the duties of  a public  servant, the official status furnishing only the  occasion or  opportunity for the commission of the offences, is  also the correct exposition of the law. It has not been  contended before  us that  official  duty  of  the appellant was  to draw travelling allowance bills though his status as  a public  servant authorised  him  to  draw  such bills. Drawing  of T.A.  bills cannot  be said  to have been directly and  reasonably connected  with appellants  duty as Regional Officer  of the Directorate and the official status furnished  the   opportunity  for   doing  the   acts  which constitute ingredients  of the  offence. He  was, therefore, not entitled 800 to claim  the protection  of s.  197 (1)  of the  Code.  The prosecution is not vitiated for want of sanction. The appeal has, therefore, to be dismissed.      The prosecution  was laid about 8 years back and on the plea of  want of sanction the matter has been dragged on for such a  long time at different stages. We, therefore, direct that the  trial court  shall proceed  to conclude  the trial expeditiously in accordance with law. H.S.K.                                     Appeal dismissed. 801