28 February 1955
Supreme Court


Case number: Appeal (crl.) 48 of 1954






DATE OF JUDGMENT: 28/02/1955


CITATION:  1955 AIR  309            1955 SCR  (1)1302

ACT: Criminal  Procedure Code (Act V of 1898), s. 19  7(1)-Charge of  criminal  misappropriation  against  a  public  servant- Sanction  for  prosecution under s. 197(1) of  the  Code  of Criminal  Procedure  When  necessary-Whether  every  offence committed by a public servant or every act done by him while performing    official   duties   requires   sanction    for prosecution.

HEADNOTE: It  is not every offence committed by a public servant  that requires  sanction for prosecution under s. 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  stage of the grant of sanction, which must precede the institution of the prosecution. Whether sanction is necessary to prosecute a public  servant on  a  charge of criminal misappropriation, will  depend  on whether  the  acts complained of hinge on his  duties  as  a public  servant.   If they do, then sanction  is  requisite. But  if  they  are unconnected with  such  duties,  then  no sanction is necessary. Hori Ram Singh v. Emperor ([1939] F.C.R. 159), H. H. B. Gill v.  The King ([1948] L.R. 75 I.A. 41), Albert West Meads  v. The King ([1948] L.A. 75 I.A. 185), Phanindra Chandra v. The King  ([1949] L.R. 76 I.A. 10), B. W. Mothavzs v.  State  of West  Bengal ([1955] 1 S.C.R. 216) and Shreekantiah  Ramayya Munipalli  v.  The State of Bombay ([1955] 1  S.C.R.  1177), referred to.




CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 48  of 1954.                             1303 Appeal by Special Leave granted by the Supreme Court by  its Order  dated the 31st July 1953 from the Judgment and  Order dated the 15th May 1953 of the High Court of Judicature  for the State of Pepsu at Th, Patiala in Criminal Appeal No. 140 of 1952 arising out of the Judgment and Order dated the 31st March 1952 of the Court of Magistrate 1st Class, Patiala  in Challan Case No. 160/102 of 1951. Jai Gopal Sethi, (Naunit Lal, with him) for the appellant. N.   S. Bindra, (Porus A. Mehta and P. G. Gokhale, with him) for the respondent. 1955.  February 28.  The Judgment of the Court was delivered by VENKATARAMA  AYYAR  J.-The appellant  was  a  Sub-Divisional Officer  in the Public Works Department, Pepsu, and was,  at the  material dates,, in charge of certain works at a  place called  Karhali.  It was part of his duties to disburse  the wages  to  the  workmen  employed  in  the  works,  and  the procedure  usually  followed  was that be  drew  the  amount required from the treasury, and paid the same to the  emplo- yees  against their signatures or thumb-impressions  in  the monthly  acquittance roll.  In the roll for April 1951,  one Parma was mentioned as a khalasi (menial servant), and a sum of  Rs. 51 shown as paid to him for his wages,  the  payment being   vouched  by  thumbimpression.   The  case   of   the prosecution  was that there was, in fact, no person  of  the name  of  Parma,  that the  thumb-impression  found  in  the acquittance roll was that of the appellant himself, that  he had included a fictitious name in the acquittance roll, with intent  to  himself  draw  the  amount,  and  that  by  this expedient  he  had received Rs. 51 and  misappropriated  the same. The  First-Class  Magistrate  of Patiala,  before  whom  the appellant  was put up for trial, framed charges against  him under  section 465 of the Indian Penal Code for forging  the thumb-impression  of  Parma, and under section  409  of  the Indian  Penal Code for criminal misappropriation of Rs.  51, and after a full trial, 167 1304 acquitted  him.  He held on the evidence that "there  was  a khalasi  Parma  by  name in the service of  the  accused  at Kehrauli",  and  that  though  the  thumbimpression  in  the acquittance roll was that of the appellant, the  prosecution had  not  established that the amount drawn by him  did  not reach the hands of Parma.  Against this judgment, there  was an  appeal  by the State to the High Court of  Pepsu,  which held that proof that the thumb-impression in the acquittance roll was that of the appellant was sufficient, ,.when  taken along with other circumstances, to establish his guilt,  and accordingly convicted him both under section 465 and section 409 of the Indian Penal Code.  This appeal by special  leave is directed against this judgment. In  support  of " the appeal it is argued by Mr.  Jai  Gopal Sethi  that the conviction of the appellant is  illegal,  as sanction had not been obtained under section 197 (1) of  the Code  of  Criminal Procedure for his prosecution,  that  the evidence  on record is insufficient to establish an  offence either under section 465 or section 409 of the Indian  Penal Code  and  that  there  having  been  an  acquittal  of  the appellant  by the trial Magistrate, the materials on  record did not justify a reversal of that verdict by the  appellate Court.



The  question of sanction under section 197 (1) of the  Code of   Criminal   Procedure  may  be  taken   up   first   for consideration,  as  it goes to the root of the  matter.  The facts  bearing  on  this  question are  that  there  was  an application  by the Department for   sanction  to  prosecute the  appellant for an offence under section 409,  and  that, the    Chief   Secretary,   Home   Department,   sent    the communication,   Exhibft  PX,  stating  that  he  had   been "directed  to  convey  sanction of  the  Government  to  his prosecution".   In  view  of this, no  question  was  raised before  the  trial  Magistrate or the High  Court  that  the prosecution  was  bad for want of sanction.  But  after  the disposal of the appeal by the High Court, it was  discovered that,  in  fact,  there  was  no  order  of  the  Government sanctioning  the prosecution, and that the  Chief  Secretary had  committed  a  mistake  in  sendidg  the  communication, Exhibit PX.                             1305 The  position, therefore, is that the prosecution which  has resulted  in the conviction of the appellant  was  initiated without  any  sanction under section 197(1) of the  Code  of Criminal  Procedure  and if sanction under that  section  is necessary,  as contended for by Mr. Sethi, then  the  entire proceedings  including  the  conviction  must  be   quashed. According  to  the  respondent,  however,  the  main  charge against the appellant is under section 409, and no  sanction is required for a prosecution under that section.  The point for  decision is whether sanction under section 197  (1)  of the Code of Criminal Procedure is necessary for  prosecuting the appellant under section 409. - There  has been considerable divergence of judicial  opinion on  the  scope  of section 197(1) of the  Code  of  Criminal Procedure.   The question has latterly been the  subject  of consideration by the highest Courts in this country, and  by the  Privy Council, and the position may now be taken to  be fairly  well-settled.   Hori Ram Singh v.  Emperor(1)  is  a decision of the Federal Court on the necessity for  sanction under  section  270 of the Government of  India  Act,  1935, which  is similar in terms to section 197(1) of the Code  of Criminal Procedure.  The facts in that case were that a Sub- Assistant Surgeon was charged under section 409 with  having dishonestly removed certain medicines from a hospital  which was  under  his  charge, to his  own  residence,  and  under section 477-A, with having failed to enter them in the stock book.  The sanction of the Government had not been  obtained for  the prosecution under section 270 of the Government  of India  Act,  and the point for decision was whether  it  was necessary.  It was held that the charge under section  477-A required sanction, as "the official capacity is involved  in the  very  act complained of as amounting to a  crime";  but that  no  sanction was required for a charge  under  section 409,  because  "the official capacity is  material  only  in connection  with the ’entrustment’ and does not  necessarily enter into the later act of misappropriation or  conversion, which is the act complained of". (1)  [1939] F.C.R. 159. 1306 In  the course of his judgment, Varadachariar, J.  discussed the  scope  of  section  197(1)  of  the  Code  of  Criminal Procedure  and  after observing that the decisions  on  that section  were  not uniform, proceeded to  group  them  under three  categories-those  which had held  that  sanction  was necessary  when  the  act complained  of  attached  to’  the official  character of the person doing it, those which  had held  that  it  was  necessary in all  cases  in  which  the



official character of the person gave him an opportunity for the  commission  of the crime, and those which had  held  it necessary  when the offence was committed while the  accused was actually engaged in the performance of official  duties. The learned Judge expressed his agreement with the first  of the three views. In H. H. B. Gill v. The King(1), the question arose directly with  reference  to section 197(1) of the Code  of  Criminal Procedure.  There, the accused was charged under section 161 with taking bribes, and under section 120-B with conspiracy. On the question whether sanction was necessary under section 197(1)  it was held by the Privy Council that there  was  no difference in scope between that section and section 270  of the  Government  of  India  Act,  1935,  and  approving  the statement of the law by Varadachariar, J. in Hori Ram  Singh v. Emperor(2), Lord Simonds observed: "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, what he does, he does in virtue of his office". It  was  accordingly held that as the acts  with  which  the accused was charged could not be justified as done by virtue of his office, no sanction was necessary.  The view taken in H.  H.  B.  Gill v. The King(1) was followed  by  the  Privy Council  in  A16   ert  West  Meads  v.  The  King(-’),  and reaffirmed in Phanindra Chandra v. (1)  [1948] L.R. 75 I.A. 41. (2)  [1939] F.C.R. 159. (3)  [1948] L.,R. 70 I.A. 185,                             1307 The  King(1), and adopted by this Court in R. W. Mathams  V. State of We8t Bengal(1). 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 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  in- vestigated at the trial, and could not arise at the stage of the grant of sanction, which mu_t precede the institution of the prosecution. It  is  conceded for the respondent that  on  the  principle above enunciated, sanction would be required for prosecuting the  appellant  under  section 465, as  the  charge  was  in respect  of  his  duty of  obtaining  signatures  or  thumb- impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could,  under no  circumstances,  be said to be within the  scope  of  the duties of a public servant, that he could not, when  charged with it, claim justification for it by virtue of his office, that   therefore  no  sanction  under  section  197(1)   was necessary,  and  that  the question  was  concluded  by  the decisions  in Hori Ram Singh v. Emperor(1) and  Albert  We8t Meads  v. The King(1), in both of which the charges were  of criminal  misappropriation.  We are of opinion that this  is too  broad a statement of the legal position, and  that  the two decisions cited lend no support to it.  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 attach- (1)  [1949] L.R. 76 I.A. 10. (3)  [1939] F.C.R. 159. (2)  [1955] 1 S.O.R. 216. (4)  [1948] L.R. 75 I.A. 180, 1308 ing  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. Quite  recently, this Court had to consider in  Shreekantiah Ramayya  Munipalli v. The State of Bombay(1)  the  necessity for  sanction under section 197(1), when the charge was  one of misappropriation under section 409.  There,  the law  was laid down in the following terms: "The  section  has content and its language  must  be  given meaning.  What it says is- ’When  any 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 duty......... We   have  therefore  first  to  concentrate  on  the   word "offence’. Now  an  offence  seldom consists of a single  act.   It  is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be  established. In the present case, the elements alleged against the second accused  are, first, that there was an ’entrustment’  and/or ’dominion’; second, that the entrustment and/or dominion was ’in his capacity as a public servant’; third, that there was a ’disposal’; and fourth, that the disposal was ’dishonest’. Now it is evident that the entrustment and/or dominion  here were in an official capacity, and it is equally evident that there  could  in  this  case  be  no  disposal,  lawful   or otherwise,  save by an act done or purporting to be done  in an official capacity". On the facts, it was held in that case that the several acts which  were complained of, were official acts, and that  the prosecution was bad for want of sanction. The  decisions in Hori Ram Singh v. Emperor(1),  and  Albert West  Meads v. The King(1), when properly examined,  do  not support the extreme contention (1) [1955] 1 B.C.R. 1177.         (2) [1989] F.C.R. 159. (3) [1948] L.R 75 I.A. 185. 1309 urged  on  behalf of the respondent.  In Hori Ram  Singh  v. Emperor(1), the medicines had not been entered in the  stock book, and were removed by the accused to his residence,  and the  charge against him was that in so removing them he  had committed  MISappropriation.  It was no part of the duty  of the  accused to remove medicines to his house, and he  could not claim that he did so by virtue of his office.  He  could have  made such a claim if he had, let us  suppose,  entered the medicines in- the stock books and shown them as expended in  the  hospital.  But, on the facts, no official  act  was involved, and that was why Varadachariar, J. observed that,  "....  so  far  as the charge under  section  409  was  con cerned,  the acts in respect of which he was intended to  be prosecuted  could not be regarded as acts done or  purported



to be done in execution of his duty". Reference may also be made to the following observations  of Sulaiman, J. in the same case: "The  question  whether a criminal breach of  trust  can  be committed  while purporting to act in execution of his  duty is  not  capable  of being answered  hypothetically  in  the abstract,  without any reference to the actual facts of  the case.   An attempt to answer the question in  a  generalized way has been responsible for loose language used in some  of the  cases cited before us.... The question whether the  act purported to have been done in execution of duty or not must depend on the special circumstances of each case". In  Albert  West Meads v. The King(1), an Army  Officer  had received  two sums of money, and was subsequently unable  to produce    them.     He   was    charged    with    criminal misappropriation,  and  convicted.  He  contended  that  the conviction  was illegal for want of sanction, but the  Privy Council,  following H. H. B. Gill v. The  King(1),  rejected this  contention.  It is essential to note that the  accused did not claim to have spent the amount in the course of  his official  duties, but stated that the moneys had  been  con- sumed by fire.  It is with reference to these facts that the Privy Council observed: (1) [1939] F.C.R. 159.         (2) [1948] L.R. 75 I.A. 185. (3)  [1948] L.R. 75 I.A. 41. 1310 of  which  he  was  charged’,  i.e.  acts  of   fraudulently misapplying money entrusted to his care as a public servant, ’as  acts done by him by virtue of the office that he  held’ ". The  result  then is that whether sanction is  necessary  to prosecute   a  public  servant  on  a  charge  of   criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a pubic servant.  If they do, then sanction  is  requisite.  But if they are  unconnected  with such duties, then no sanction is necessary. In this view, we have to examine whether the acts with which the  appellant is charged directly bear on the duties  which he has got to discharge as a public servant.  The  appellant received   the   sum  of  Rs.  51  alleged  to   have   been misappropriated,  as  Subdivisions Officer,  and  he  admits receipt  of  the  same.  Then it was his duty  to  pay  that amount  to  the  khalasi Parma, and take  his  signature  or thumb-impression  in  acknowledgment thereof.   The  accused does  claim  to  have  paid the amount  to  Parma,  and  the acquittance  roll  records  the payment,  and  there  is  in acknowledgment  thereof  a thumb-impression as  against  his name.   If what appears on the face of the roll is  true-and whether  it is true or not is not a matter relevant  at  the stage of sanction-then the acts with which the appellant  is charged  fall  within the scope of his duties,  and  can  be justified by him as done by virtue of his office.   Clearly, therefore, sanction was required under section 197(1) of the Code  of  Criminal Procedure before the appellant  could  be prosecuted under section 409, and the absence of such  sanc- tion  is  fatal to the maintainability of  the  prosecution. The conviction should, therefore, be quashed. In  this view, there is no need to consider whether  on  the evidence,  the  offence  of  criminal  misappropriation   or forgery has been brought home to the appellant or not. The  appeal is accordingly allowed, and the convictions  and sentences  passed on the appellant arc set aside.  Fine,  if paid, will be refunded. Appeal allowed. 1311