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PETITIONER: B. SAHA AND ORS.

       Vs.

RESPONDENT: M. S. KOCHAR

DATE OF JUDGMENT27/07/1979

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH SHINGAL, P.N. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1841            1980 SCR  (1) 111  1979 SCC  (4) 177  CITATOR INFO :  R          1981 SC 806  (4,6)  R          1983 SC 610  (9)  RF         1991 SC1260  (66)

ACT:      Criminal Procedure Code 1898, Sec. 197-Scope of.

HEADNOTE:      The act  complained of is dishonest misappropriation or conversion of  goods by the appellants which they had seized and as  such were  holding in  trust to  be  dealt  with  in accordance with  law. This  gave a bona fide apprehension to the respondent  that the  goods have  been  criminally  mis- appropriated by  the  appellants.  The  S.D.M.  conducted  a preliminary enquiry  and found a prima      facie case under S. 120B/409  IPC against the appellants. The S.D.M. summoned the appellants  who appeared before him and prayed for their immediate discharge,  which was  accepted on the ground that he had  no jurisdiction  and he discharged the appellants. A revision  petition  before  the  Addl.  Sessions  Judge  was dismissed on the ground that since the shortage of the goods was discovered  at the  time when  they were produced before the Customs House, there was absolutely nothing to show that the shortage,  if any, was due to the act of the appellants. The respondent  went in  further revision  to the High Court which was  allowed  on  the  ground  that  no  sanction  was required  for  the  prosecution  of  the  accused-appellants because they  were certainly  not acting in the discharge of their  official  duties,  when  they  misappropriated  these goods.      It was argued on behalf of the appellants that-           (i)   It had been falsely alleged in the complaint                that when  the S.D.M. inspected the goods and                noticed the  condition thereof,  it was found                that the  seals of the four boxes were broken                while  the   remaining  three  packages  were                completely  empty   but  sealed;   that   the                inventory  itself,  prepared  by  the  S.D.M.                falsified the prosecution allegation;           (ii) That it was not alleged in the complaint with                particularly as to what goods had disappeared

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              or were  removed, nor  that the disappearance                of some  of the goods, if any, occurred after                their seizure and before their deposit in the                Customs House by the appellant;            (iii) That even if for the sake of argument it is                assumed that  some of  the goods were removed                and  set   apart  by   the  appellants  after                seizure, then  also sanction  for prosecution                u/s  197  Cr.P.C.  was  absolutely  necessary                because,  the   seizure  and   removal  being                integrally connected  with  each  other,  the                alleged  act   constituting  the  offence  of                criminal mis-appropriation/criminal breach of                trust could  but reasonably  be viewed  as an                act which  includes dereliction  of duty-done                or purporting  to be done in the discharge of                their official duty by the appellants;           (iv) That  section 197 Cr.P.C. cannot be construed                too narrowly,  in the  sense that  since  the                commission of  offence is never a part of the                official duty  of a  public servant,  an  act                constituting an offence can 112                never  be   said  to   have  been   done   or                purportedly done in the discharge of official                duty, as  such a  narrow  construction,  will                render the section entirely otiose.      Dismissing the appeal, ^      HELD:  The   question  of  sanction  u/s  197  Criminal Procedure Code  can be raised and considered at any stage of the proceedings. [116H, 117A]      The words  "Any offence  alleged to have been committed by him while acting or purporting to act in the discharge of his official  duty" in  section  197(1)  of  the  Code,  are capable of a narrow as well as 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 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  sec.  197(1),  an  act constituting an  offence directly  and reasonably  connected with an  official duty will require sanction for prosecution under  the   said  provision.  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 public servant either in his official capacity or under colour of the office held my him. [118D-H, 119A]      In the  instant case, there was some foundation for the allegation   that   the   goods   in   question   had   been misappropriated  by  the  appellants  sometime  after  their seizure and before their deposit in the Customs House. There can be  no dispute  that the  seizure of  the goods  by  the appellants and  their being thus entrusted with the goods or having dominion  over them,  was an  committed by them while acting in  the discharge of their official duty. But the act complained of  is subsequent  dishonest, misappropriation or conversion of  those goods  by the  appellants, which is the

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second necessary  element of the  offence of criminal breach of trust  under section 409, Indian Penal Code. It could not be said  that the  act  of  dishonest,  misappropriation  or conversion complained  of bore  such an integral relation to the duty  of the  appellants that they could genuinely claim that they  committed it  in the course of the performance of their official duty.[119E-H-120A]      There is  nothing in  the nature  or quality of the act complained of  which attaches to or partakes of the official character of  the appellants who allegedly did it. Nor could the  alleged   act  of  misappropriation  or  conversion  be reasonably said  to be  imbued with the colour of the office held by  the appellants.  Therefore, on  the  facts  of  the present case,  the alleged  act of criminal misappropriation complained of  was not  committed by  them while  they  were acting or  purporting to  act  in  the  discharge  of  their official duty,  the commission  of  the  offence  having  no direct connection  or inseparable  link with their duties as public servant.  At the  most, the  official status  of  the appellants furnished them with an opportunity or occasion to commit the alleged criminal act. Sanction of the appropriate Government was therefore not necessary for the protection of the appellants  for an offence under section 409/120B Indian Penal Code. [120A-B, 121D-F] 113      Om Parkash v. State of Uttar Pradesh, 1957, S.C.R. 423, Amrik Singh  v. The  State of  pepsu,  [1955]  1  SCR  1302, Shreekantiah Rammayya Munipalli and Ors. v. State of Bombay, A.I.R. 1955, S.C.R. 187; distinguished.      Baijnath v.  State of Madhya Pradesh, A.I.R. 1966, S.C. 220 at  page 222  and Harihar  v. State  of Bihar,  [1972] 3 S.C.R. 89; referred to.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 21 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 3-5-1972  of the Delhi High Court in Criminal Revision No. 450/69.      D. Mukherjee,  S. K.  Dholakia and R. C. Bhatia for the Appellants.      Respondent in person.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by  special  leave  directed against a  judgment, dated  May 3,  1962, of  the Delhi High Court, arises out of these circumstances :      M. S.  Kochar, the respondent herein, filed a complaint in  the  Court  of  the  Sub-Divisional  Magistrate,  Delhi, alleging that the appellants herein, who are officers of the Customs Department,  had committed  offences under  Sections 120B/166/409, Indian  Penal  Code.  It  was  stated  in  the complaint as follows :      The complainant was the sole representative in India of various manufacturing  concerns in  West  Germany,  and  was carrying on  business under  the style  of "House  of German Machinery". He  imported certain items of machinery from the German  firms  for  displaying  them  in  the  International Industries Fair  held in  New Delhi  in November,  1961.  In spite of  the fact  that he  had obtained  a  valid  Customs Clearance Permit for the import of these items of machinery, the Customs  Authorities prevented  him  from  clearing  the goods from  the Railway Station. Ultimately, the complainant was able  to clear  the goods  by  obtaining  the  necessary

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permission from the Government. He was allowed to retain the imported goods  with him  till the  first of June, 1962. The goods were  to be  re-exported from  India, thereafter.  The respondent applied  for extension  of the  period,  but  his request was declined.      On June  16, 1962,  the accused (appellants) raided the premises of the complainant at 30, Pusa Road, New Delhi, and seized some  of those  imported goods  which were  meant for display in the International Industries Fair. The appellants also seized certain other goods kept by 114 the complainant at the site of the Fair, itself. Inventories of the  goods were prepared by the appellants at the time of their seizure.  The goods  were then  packed  in  boxes  and sealed by  the appellants  with their  own seals  which were signed by  the complainant  as well  as the  appellants. One copy of  the inventories,  duly signed by the appellants and the complainant, also was handed over to him.      On  November   20,  1963,   the  complainant   made  an application before  the Sub-Divisional  Magistrate,  praying that the  goods seized  by the  appellants be handed over to him on  Superdari as  they were likely to deteriorate unless kept safely  under  proper  conditions.  The  Sub-Divisional Magistrate, on  January 22,  1964, made  an order  directing that all  the goods  seized by the appellants be handed over to the complainant on Superdari.      The Customs,  however, felt  aggrieved by this order of the Magistrate  and went  in revision  against it before the Additional Sessions  Judge, Delhi, who, on February 7, 1964, passed   an    order   staying   delivery   of   possession. Subsequently, by  order dated  April 3, 1965, the Additional Sessions Judge  dismissed the  revision-petition and vacated the stay  order. In  spite of  the order  of the Magistrate, confirmed by  the Additional  Sessions  Judge,  the  Customs handed over  to the  complainant on Superdari only a part of the goods seized, and in respect of the remaining goods, the Customs Authorities  went in  further revision  to the  High Court and  obtained an  interim stay  of the  order  of  the Additional Sessions Judge.      Subsequently, on  August 22,  1966, the High Court made an order  directing that all the goods which had been seized by the  Customs Authorities  from the complainant, including those which had been returned to him on Superdari, should be produced  before  the  Sub-Divisional  Magistrate,  who  was seized of  a case  under Section  5 of the Import and Export (Control) Act  and Section  166(81) of  the Sea Customs Act, regarding  the   goods,  pending  against  the  complainant. Accordingly, Shri  H. L.  Sikka, Sub-Divisional  Magistrate, prepared two inventories of these goods on November 16, 1966 and thereafter. The boxes were opened before Shri Sikka, who got inventories  of the  goods found  therein prepared,  and after noting  the condition  of those goods, he got the same repacked and  sealed in  proper boxes in the presence of the parties with  a seal  of the  Court. Before  resealing,  the Magistrate noted  down the  condition of  the four  packages which were  produced before  him by the appellants and which remained in  their possession since the seizure (16-6-1962). "It was then found by the Magistrate that the seals of these boxes were tampered. One 115 wooden box  was broken  and the  seal on it was also broken; while the remaining three packages were completely empty but sealed".      The goods  of Consignment No. 1 of M/s. Gebr. Ruhstrat, concerning the complaint filed by the Assistant Collector of

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Customs under  Section 5  of the  Import &  Export (Control) Act, and  Section 117(81) of the Sea Customs Act, which were also seized  by appellant  No. 1,  who  had  obtained  their delivery from  the Railway Station, were not produced before Shri H.  L. Sikka,  Magistrate, along  with the  other goods when the  inventories were prepared. This gives "a bona fide apprehension to  the complainant  that the  said goods  have been criminally misappropriated by the accused."      "The accused  by their  act in  illegally tampering and breaking the  seals of  the consignment  seized by  them and removing some  of these  goods  and  further  abusing  their positions and  seizing some  of the personal articles of the complainant under the colour of search warrant issued by the S.D.M. Karol  Bagh and  illegally holding those goods of the complainant uptil...have  committed offences  under Sections 120B/166/409 IPC."      The Sub-Divisional Magistrate before whom the complaint had been  filed, examined  the complainant under Section 200 and further  held a  preliminary enquiry  under Section 202, Cr.P.C., in  the course  of which,  he examined  Shri H.  L. Sikka, Magistrate,  also. After  considering the  statements recorded in  the  preliminary  enquiry,  and  the  documents produced by  the complainant,  the Magistrate  found a prima facie case under Sections 120B/409, I.P.C. against the three appellants.  He,   therefore,  directed   that  the  accused (appellants herein) be summoned.      On  receiving  the  summons,  the  appellants  appeared before the  Magistrate and  made an  application praying for their immediate  discharge, inter  alia, on  the ground that the Magistrate had no jurisdiction to take cognizance of the complaint in  the absence  of sanction  under Section 197 of the Code  of Criminal Procedure, 1898, and under Section 155 of the Customs Act, 1962, for prosecution of the appellants.      The Magistrate accepted this objection and held that in the absence  of sanction  for the prosecution of the present appellants, he had no jurisdiction to take cognizance of the complaint. He  purportedly relied  on the  decision of  this Court in  Shreekantiah Rammayya Munipalli & Anr. v. State of Bombay(1).  In   the  result,   he  discharged  the  accused (appellants, herein). 116      Aggrieved, the  complainant filed  a revision  petition which was  dismissed by  the Additional  Sessions Judge,  on December 6,  1968, on  the ground that since the shortage of goods was  discovered at  the time  when they  were produced before the  Customs House,  and there was absolutely nothing to show  that the goods in question remained in the personal custody of  the appellants,  "it was  difficult to hold that the shortage, if any, was due to the act of the accused."      The complainant  went in  further revision  to the High Court, which was heard and allowed by a learned Judge by his judgment now  under appeal  before us.  After  an  elaborate discussion, the  learned Judge has held that no sanction was required for  the prosecution  of the accused appellants for an offence  under  Sections  120B/409,  Indian  Penal  Code, because "they  were certainly not acting in the discharge of their  official  duties,  when  they  misappropriated  these goods".      The first  contention of  Mr. Mukerjee, learned Counsel for the  appellants is  that  the  complainant  has  falsely alleged  in  the  complaint  that  when  the  Sub-Divisional Magistrate, Shri  Sikka, in compliance with the order of the High Court,  inspected the  goods and  noted  the  condition thereof, "it  was found  that the  seals of  four boxes were broken, while  the remaining  three packages were completely

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empty but  sealed". It  is  maintained  that  the  inventory itself, prepared  by Shri  Sikka, falsifies this allegation. It is  further pointed  out that  in the complaint it is not alleged with  particularity as  to what goods disappeared or were removed,  nor that  the disappearance  of some  of  the goods, if any, occurred after their seizure and before their deposit in the Customs House by the appellants, and that the allegation made  by the  complainant during arguments before the High  Court, to  the effect,  that the goods in question were misappropriated sometime after seizure and before their deposit in  the Customs House, was not based on any facts or circumstances appearing in the statements of the complainant and Shri  Sikka recorded  during  the  preliminary  enquiry. Learned counsel  also repeatedly  urged that the allegations regarding the  commission of  the offence of criminal breach of trust  by the  appellants, were false and groundless. For this purpose,  it is  stressed, the Court should not confine itself to the allegations in the complaint but also consider all the  evidential material  on the  record including  that brought on  the record  by the appellants. In support of the contention that  the question of sanction can be raised from stage to stage, Mr. Mukherjee relied on certain observations of this Court in Matajog Dobey v. H. C. Bari(1).      We have  no  quarrel  with  the  proposition  that  the question of  sanction under  Section  197,  Cr.P.C.  can  be raised and considered at any 117 stage of  the proceedings.  We will  further concede that in considering  the   question  whether  or  not  sanction  for prosecution was  required, it is not necessary for the Court to confine  itself to  the allegations in the complaint, and it can  take into  account all the material on the record at the  time   when  the  question  is  raised  and  falls  for consideration. Now, in paragraph 20 of the complaint, it was clearly alleged  that the Sub-Divisional Magistrate, Shri H. L. Sikka  found that  the  seals  of  four  boxes  had  been tampered with  and  one  of  the  boxes  broken,  while  the remaining three packages "were completely empty but sealed". Mr. Mukherjee has not read out or referred to any portion of the statement  of Shri  H. L.  Sikka recorded  under Section 202, Cr.P.C., to show that the same contradicts or falsifies the  allegations   in  paragraphs  19,  20  and  21  of  the complaint.  Indeed,   no  copy  of  the  statements  of  the complainant  and   Shri  Sikka   recorded   in   proceedings preliminary to  the issue of process, has been furnished for our perusal.  It is true that the precise time and manner or the misappropriation  and the  detailed particulars  of  the items of goods alleged to have been misappropriated, are not given in  the complaint.  But it  seems that some foundation for the  allegation that  the goods  in  question  had  been misappropriated  by  the  appellants  sometime  after  their seizure and  before their  deposit in the Customs House, had been  laid  during  the  preliminary  enquiry  made  by  the Magistrate. This  allegation was  made not  only before  the High Court,  but has  been reiterated  by the complainant in paragraph 12  of his  counter-affidavit that he had filed in this Court  in opposition  to the  special leave petition of the appellants.  For this  averment, he  relied on a certain letter/notice dated January 30, 1963 addressed to him by the Customs Authority.      Thus, the material brought on the record upto the stage when the  question of  want of  sanction was  raised by  the appellants,  contained   a  clear   allegation  against  the appellants about  the commission of an offence under Section 409, I.P.C.  To elaborate, it was substantially alleged that

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the appellants had seized the goods and were holding them in trust in  the discharge  of their  official duty,  for being dealt with  or disposed  of in  accordance with  law, but in dishonest   breach    of   that   trust,   they   criminally misappropriated  or  converted  those  goods.  Whether  this allegation or charge is true or false is not to be gone into at this  stage. In considering the question whether sanction for prosecution  was or  was not  necessary, these  criminal acts attributed to the accused are to be taken as alleged.      For these  reasons, we  overrule the  first  contention canvassed on behalf of the appellants. 118      The second  contention advanced  by Mr. Mukherjee is in the alternative.  It is  submitted that even if for the sake of argument,  it is  assumed that  some of  the  goods  were removed and  set apart by the appellants after seizure, then also, the seizure and the removal being integrally connected with each  other the alleged act constituting the offence of criminal misappropriation/criminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty-done or purporting to be done in the discharge of their official duty  by the  appellants. It is argued that S. 197, Cr. P.  C. cannot  be construed  too narrowly,  in the sense that since  the commission of offence is never a part of the official duty  of a  public servant,  an act constituting an offence can  never be  said to have been done or purportedly done in  the discharge  of  official  duty.  Such  a  narrow construction, it  is  submitted,  will  render  the  Section entirely otiose.  For law  on the point, the learned counsel referred to  several decisions  of this  Court. He  took  us through the  relevant passages  of the judgment in Matajog’s case (supra),  and strongly  relied on  the ratio  of Shree- kantiah Rammayya’s  case (ibid) and Amrik Singh v. The State of Pepsu (1)      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  for  prosecution  under  the  said  provision.  As pointed out  by Ramaswami J. in Baijnath v. State of M.P.(2) "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  Section  197  of  the  Criminal Procedure Code will be attracted."      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 119 be one which has been committed by the public servant either in his  official capacity or under colour of the office held by him.      While the  question whether an offence was committed in

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the course  of official  duty or  under  colour  of  office, cannot be  answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar  J. of  the Federal  Court in  Hori Ram  v. Emperor, (1)  is generally  applied  with  advantage.  After referring   with   approval   to   those   observations   of Varadachariar  J.,  Lord  Simonds  in  H.H.B.  Gill  v.  The King.(2) tersely  reiterated that  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."      Speaking for  the Constitution  Bench  of  this  Court, Chandrasekhar. Aiyer J., restated the same principle, thus:      ".....in the  matter of grant of sanction under Section 197, 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".                                          (Emphasis supplied)      Let us  now apply  this broad  test to the facts of the case as alleged and sought to be proved by the complainant.      The allegation  against the  appellants  is  about  the commission of offences under Sections 409/120B, Indian Penal Code. To be more precise, the act complained of is dishonest misappropriation  or   conversion  of   the  goods   by  the appellants, which  they had seized and as such, were holding in trust  to be dealt with in accordance with law. There can be  no  dispute  that  the  seizure  of  the  goods  by  the appellants and  their being thus entrusted with the goods or dominion over  them, was  an act  committed  by  them  while acting in  the discharge of their official duty. But the act complained of  is subsequent  dishonest misappropriation  or conversion of  those goods  by the  appellants, which is the second necessary  element of  the offence of criminal breach of trust  under Section  409, Indian Penal Code. Could it be said,  that   the  act   of  dishonest  misappropriation  or conversion complained  of bore  such an integral relation to the duty of the appellants 120 that they  could genuinely  claim that  they committed it in the course  of the  performance of  their official duty ? In the facts  of the  instant case, the answer cannot but be in the negative.  There is  nothing in the nature or quality of the act  complained of  which attaches to or partakes of the official character  of the  appellants who allegedly did it. Nor could the alleged act of misappropriation or conversion, be reasonably  said to  be imbued  with the  colour  of  the office held by the appellants.      As pointed out by Varadachariar J. in Hori Ram (supra), generally, in  a case  under Section 409, Indian Penal Code, "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."      This,  however,   should  not   be  understood   as  an invariable proposition  of law.  The  question,  as  already explained, depends  on the  facts of  each case.  Cases  are conceivable where on their special facts it can be said that the  act   of  criminal   misappropriation   or   conversion complained  of   is   inseparably   intertwined   with   the performance  of   the  official  duty  of  the  accused  and therefore, sanction  under Section  197(1) of  the  Code  of

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Criminal Procedure  for prosecution  of the  accused for  an offence under Section 409, Indian Penal Code was necessary.      Shreekantiah Rammayya  (supra) was a case of that kind. The act  complained of  against the  second accused  in that case was,  dishonest disposal  of the goods. The peculiarity of  the   act  was   that  from  its  very  nature,  in  the circumstances of  that case,  it could  not have  been  done lawfully or  otherwise by the accused save by an act done or purporting to  be done  in an  official capacity.  In  other words, the  very charge,  was  the  dishonest  doing  of  an official act  by the  accused. Whether the act was dishonest or lawful,  it remained  an official act because the accused could not  dispose of  the goods  save by  the doing  of  an official act,  namely, officially permitting their disposal; and that  he did.  It was  in view of these special facts of the case,  it was  held that  the offence under Section 409, Indian Penal Code was committed or purported to be committed by the  accused in  the discharge of his official duty, and, as such,  sanction under  Section  197(1)  Cr.  P.C.  was  a prerequisite for  his prosecution.  The facts  of  the  case before us  are entirely different. The ratio of Shreekantiah Rammayya has  therefore, no  application to the facts of the case before us.      In Amrik  Singh v.  The State  of Pepsu,(1) it was laid down that  whether sanction  is  necessary  to  prosecute  a public servant on a charge 121 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. Amrik Singh’s  case also stands on its own facts, which were materially different  from those  of the  present case.  The correctness of  that decision  was doubted  in  Baijnath  v. State of  Madhya Pradesh  (supra), and its authority appears to have  been badly  shaken. In  any case, its ratio must be confined to its own peculiar facts.      There are  several decisions of this Court, such as, Om Parkash Gupta  v. State  of Uttar  Pradesh,(1)  Baijnath  v. State of  Madhya Pradesh (supra), Marihar Prasad v. State of Bihar,(2) wherein  it has  been  held  that  sanction  under Section 197,  Criminal Procedure Code for prosecution for an offence  under  Section  409,  Indian  Penal  Code  was  not necessary. In  Om Parkash  Gupta’s case  (ibid) it  was held that a  public servant  committing criminal  breach of trust does not  normally act  in his capacity as a public servant. Since  this   rule  is  not  absolute,  the  question  being dependent on  the facts  of each  case, we  do not  think it necessary to burden this judgment with a survey of all those cases.      In the light of all that has been said above, we are of opinion that  on the  facts of the present case, sanction of the  appropriate   Government  was  not  necessary  for  the prosecution of  the appellants for an offence under Sections 409/120-B, Indian  Penal Code,  because the  alleged act  of criminal misappropriation complained of was not committed by them while  they were  acting or  purporting to  act in  the discharge of  their official  duty, the  commission  of  the offence having no direct connection or inseparable link with their duties  as public  servants. At the most, the official status of  the appellants furnished them with an opportunity or occasion to commit the alleged criminal act.      In the result, the appeal fails and is dismissed. N.K.A.                                     Appeal dismissed. 122

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