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PETITIONER: BAIJNATH GUPTA AND OTHERS

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 07/05/1965

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR  220            1966 SCR  (1) 210  CITATOR INFO :  RF         1967 SC 776  (6)  R          1970 SC1661  (4)  R          1979 SC1841  (18,27,28)  R          1983 SC 610  (7)

ACT: Code  of  Criminal  Procedure (Act 5 of  1898),  s.  197(1)- Sanction  for  prosecution  of public  servant  for  offence committed  in the discharge of official duty-Public  servant charged  under  ss.  477A and  409  I.P.C.-Sanction  whether required.

HEADNOTE: G  was  Chief Accountant-cum-Office  Superintendent  in  the Electric  Supply  Undertaking run by the Government  of  the erstwhile  state of Madhya Bharat.  He was prosecuted  along with K, an assistant Superintendent in the same office,  for criminal  breach of trust of money which had been  entrusted to  them.  They were also charged with making false  entries in  the  accounts.   The  prosecution  case  was  that  sums amounting  to Rs. 21,450 were falsely shown in the  accounts as  having been sent to the treasury but were  not  actually deposited  there.   Further, a sum of Rs.  10,000  had  been falsely  shown on the debit side to cover the extraction  of that sum by K, the said entry having been later on cancelled by G. G was convicted by the trial court under s. 477A  read with s. 109 and under s. 409 of the Indian Penal Code.   The High Court dismissed his appeal By special leave be appealed to this Court. It  was contended on behalf of the appellant that he  was  a public  servant  and the alleged offences, if  committed  by him,  were committed in the discharge of his  official  duty and  therefore  his  trial and conviction  for  the  alleged offences  was  bad on account of prior sanction  not  having been  obtained  under  s. 197(1) of  the  Code  of  Criminal Procedure. HELD  :  Sanction under s. 197(1) of the  Code  of  Criminal Procedure was necessary for the prosecution of the appellant for  the offence under s. 477A/199 of the Indian Penal  Code because it was committed within the scope of official duties though in dereliction of them. [223F]

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Per Hidayatullah and Ramaswami, JJ.  It is not every offence committed  by  a public servant that requires  sanction  for prosecution under s. 197(1) of the Criminal Procedure  Code, nor  every  act  done  by him while he  is  engaged  in  the performance   of  his  official  duties;  but  if  the   art complained of is directly concerned with his official duties so  that,  if questioned, it could be claimed to  have  been done  by  virtue  of  his  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. [223 A-C] Applying  the principle to the present case the sanction  of the  State Government was not necessary for the  prosecution of  the  appellant  under s. 409 of the  Indian  Penal  Code because  the  act  of  criminal  misappropriation  was.  not committed by the appellant while he was acting or purporting to act in discharge of his official duties and that  offence had no direct connection with the duties of the appellant as a  public servant, and the official status of the  appellant only  furnished  the  appellant  with  an  occasion  or   an opportunity of committing the offence. [223E] Satwant  Singh  v.  State of Punjab,  [1960]  2  S.C.R.  89, followed. 211 Hori  Ram Singh v. Emperor, [1939] F.C.R. 159, Gill  v.  The King, [1948] F.C.R. 19 and Om Parkash Gupta v. State of U.P. [1957] S.C.R. 423, relied on. Amrik  Singh  v.  State  of Pepsu,  [1955]  1  S.C.R.  1302, referred to. Per  Sarkar,  J.  Whether an offence was  committed  in  the course  of  official duty will depend on the facts  of  each case.    The  test  is  whether  the  public   servant,   if challenged, can reasonably claim that what he did he did  in virtue of his office. [213 G-H; 215 C-D] Hori Ram singh v. The Crown, [1939] F.C.R. 159, Shreekantiah Ramayya  Munipalli v. State of Bombay, [1955] 1 S.C.R.  1177 and Gill v. King, [1948] F.C.R. 19, referred to. The  facts  of the present case could not  be  distinguished from  those  in  Amrik Singh’s  case.   The  appellant  when charged  with  the  defalcation of  Rs.  21,450  could  have reasonably said that he sent the amounts to the treasury  as the accounts showed, and that would have been an act in  the performance of his official duty.  In respect of the sum  of Rs.  10,000 he could similarly have said that he spent  them in the discharge of his duty.  Whether he had actually  done that  or not would be irrelevant for deciding the  necessity for sanction. [215B, D, E-F] The  trial  and  conviction of the appellant  under  s.  409 Indian  Penal  Code for defalcation of the two sums  of  Rs. 10,000  and Rs. 21,450 was therefore bad in the  absence  of the necessary sanction. [215 F-G] Amrik  Singh  v.  State  of Pepsu,  [1955]  1  S.C.R.  1302, followed. Om  Prakash Gupta v. State of U.P. [1957] S.C.R. 423 and  K. Satwant  Singh  v.  State of Punjab,  [1960]  2  S.C.R.  89, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  77, 162 and 163 of 1962 and 74 of 1965. Appeals by special leave from the judgments and orders dated December  22, 1961 of the Madhya Pradesh High Court  (Indore

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Bench)  at Indore in Criminal Revisions Nos. 262,  263,  265 and 266   of 1960. A.  S. R. Chari, and Ravinder Narain, for the appellant  (in Cr.  A. Nos. 66/62 and 74/65). W. S. Barlingay and A. G. Ratnaparkhi, for the appellant (in Cr.  As. Nos. 162 and 163/62). I. N. Shroff for the respondent (in all the appeals). Sarkar, J. delivered a partly dissenting Opinion.  The Judg- ment  of  Hidayatullah and Ramaswami, JJ. was  delivered  by Ramaswami, J. Sarkar  J. I have had the advantage of reading the  judgment to  be  delivered by my learned brother Ramaswami  in  these four  appeals.   I agree with him that the  appeals  by  the appellant Kale, being Criminal Appeals Nos. 162 of 1962  and 163  of 1962 should be dismissed and have nothing to say  in regard to these appeals. 212 The  other two appeals, namely, criminal Appeals Nos. 77  of 1962  and 74 of 1965 are by the appellant Gupta against  his conviction  under s. 477A, read with S. 109, and S.  409  of the Indian Penal Code.  Ramaswami J. Is of the opinion  that the  conviction tinder S. 477A, read with S. 109, cannot  be sustained as sanction to start the proceedings had not  been duly  obtained  under  s.  1.97  of  the  Code  of  Criminal Procedure.   This  is  also  my  view.   In  regard  to  the conviction  for  the  other offence,  his  opinion  is  that sanction was not necessary and so, that conviction should be -upheld.   With this view I am unable to agree and  in  this judgment I will deal only with this matter. The  appellants Gupta and Kale were respectively  the  Chief Accountant-cum-Office  Superintendent and Assistant  Cashier of  the MAdhya Bharat Electric Supply, an enterprise run  by the  Government of Madhya Bharat.  It Is not  disputed  that Gupta  was a public servant who was not removable  from  his office save by the sanction of the Madhya Bharat government. The  only point is whether in regard to the charge under  s. 409  he  was  accused of an offence  alleged  to  have  been committed  by him while acting or Purporting to act  in  the discharge of his official duty.  If he was, then in view  of S. 197 of the Code of Criminal Procedure no court could take cognizance  or  the  offence without  the  sanction  of  the government of Madhya Bharat and his conviction under s.  409 of the Indian Penal (’ode cannot be upheld. It appears that in fact a sanction under S. 197 of the  Code of  Criminal  Procedure was obtained but IS  this  was  done after  cognizance had been taken, it was of no use.   It  is clear from the language of S. 1 97 that the sanction has  to be  taken before cognizance has been taken.  This indeed  is not  disputed.   It  is  also  clear  from  the  facts  that cognizance of the case had been taken on April 6, 1953  when witnesses were summoned on a future date so that the  matter might  be  inquired into by the magistrate : see  Hori  Ram. Singh  v.  The Crown(1), R. R. Chari v. The State  of  Uttar Pradesh(2)  and  Gopal  Marwari  v.  King  Emperor(3).   The sanction however was obtained on July 1, 1953. 1, therefore, have to proceed on the basis that the sanction had not  been obtained. Criminal Appeal No. 77 of 1962 arises out of a criminal mis- appropriation  by Gupta of Rs.  10,000 and  Criminal  Appeal No.  74  of 1965 out of a similar  misappropriation  of  Rs. 21,450,  both  of which sums were entrusted to  him  in  his official capacity.  The (1) [1939] F.C.B. 159, 179.     (2)   [1951] S.C.R. 312. (3)  [1943] I.L.P,. 22 Pat. 433.                             213

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chalan  in  the first case was in these terms  :  "Both  the accused  in  conspiracy with each other  have  embezzled  an amount  of Rs. 10,000 on 25-8-50 from this Government  money and  made  false entries of receipt and expenditure  in  the concerned  Government  registers  for  concealment  of  this embezzlement.  From investigation, doing of an offence under ss.  409,  477A and 34 Indian Penal Code is  proved  against both  the  aforesaid  accused.  Hence the  charge  sheet  is submitted  for  awarding sentences according  to  law."  The chalan  in  the other case states, "Both  these  accused  in conspiracy  with each other have embezzled in amount of  Rs. 21,133-5-0 on 29-9-50 and expenditure of Rs. 1,450 is  shown and  it is written there that this amount has been  remitted in the treasury but actually Rs. 1,133-5-0 were remitted  in the treasury on, that date and the balance of Rs. 21,450 was embezzled and false entries were made in the account  books. From an investigation, the offence under Sections 409,  477A and  34  Indian  Penal  Code is  found  and  the  Chalan  is submitted." There is some confusions in the wording of  this chalan but it is not in dispute that what was meant was that Rs.  21,450  had been embezzled by showing two sums  of  Rs. 21,133-5-0  and Rs. 1,450-0-0, totaling Rs.  22,583-5-0,  as having  been  sent to the treasury while actually  only  Rs. 1,133-5-0 had been sent.  By "both the accused" the  chalans referred to Kale and Gupta but it is not in dispute that  in regard to kale no sanction under s. 197 was necessary. Now  the only question is whether in respect of the  charges under s. 409 of the Indian Penal Code, Gupta can be said  to have  been  "accused  of any offence alleged  to  have  been committed  by him while acting or purporting to act  in  the discharge  of his official duty".  It is said on  behalf  of the  prosecution that in respect of an offence  of  criminal breach of trust no sanction is necessary as such an  offence can  never be said to be so committed because it is no  part of  the official duty of a public servant to  misappropriate moneys of his employer.  With that proposition, I am  unable to  agree.   It was rejected by this Court  in  Shreekantiah Ramayya Munipalli v. The State of Bombay(1) and Amrik  Singh v. The State of PEPSU(2). I think on the authorities as they stand, it is now  clearly established  that  whether an offence was committed  in  the course  of  official duty will depend on the facts  of  each case.  In Hori Ram Singh’s case(1) Sulaiman J. stated at  p. 180, "The question whether a criminal breach of trust can be committed while purporting to, (1) [1955] 1 S.C.R. 117        (2) [1955] 1 S.C.R. 1302. (3)  [1939] F.C.R. 159. 214 act  in execution of duty is not capable of  being  answered hypothetically in the abstract, without any reference to the actual  facts of the case." In the same case, in  discussing the test to be applied in determining whether or not an  act is one purported to be done in execution of duty as a public servant,  Varadachariar  J.  observed at p.  187,  "I  would observe at the outset that the question is substantially one of  fact,  to  be  determined  with  reference  to  the  act complained  of  and the attendant  circumstances;  it  seems neither  useful nor desirable to paraphrase the language  of the section in attempting to lay down hard and fast  tests." In Gill v. King,(1) Lord Simonds in delivering the  judgment of the Board observed that much assistance was to be derived from  the judgment of the Federal Court in Hori Ram  Singh’s case(2) and added, "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."   In  Shreekantiah

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Ramayya  Munipalli’s  case(3),  Bose J.  in  delivering  the judgment of this Court fully agreed with the observations of Varadachariar  J.  which I have earlier quoted.   That  case concerned with a charge under s. 409 as the present case is. The   accused   there  had  been  charged   with   dishonest misappropriation  of government properties by  selling  them with  intent to pocket the sale proceeds.  Bose J.  held  on the facts of that case that the misappropriation was an  act which  must  be  said to have been  done  in  the  purported discharge  of  official capacity.  This  case  shows  beyond doubt  that  it  cannot  be  laid  down  as  an   invariable proposition  that  an  offence under s.  409  can  never  be committed by a public servant while acting in the  discharge of his official duty.     The case nearest to the present is  Amrik Singh v. State of  pepsu(4). There a public officer entrusted  with  moneys for  payment of wages was charged with defalcation of a  sum of  Rs.  51 which he showed  as paid to  a  khalasi  (menial servant)  named  Parma  on account of wages  and  which  was vouched by a thumb impression purporting to be of the  payee but  which  amount it was alleged had not been paid  to  the khalasi because there was no one of that name and the  thumb impression   was   of   the   accused   himself   who    had misappropriated  the money to his own use.  This Court  held that  a  sanction was necessary in order  to  prosecute  the public servant on a charge of this kind.  It was observed at p.  1310,  "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 (1) [1948] F.C.R: p.19,40, (3) [1955] 1 S.C.R. 1177. (2) [1939] F.C.R. 159. 4) [1955] 1 S.C.R. 1302. 215 of his duties and can be justified by him as done by  virtue of  his office.  Clearly, therefore, sanction  was  required under s. 197(1) of the Code of Criminal Procedure before the appellant  could be prosecuted under s. 409 and the  absence of  such  sanction is fatal to the  maintainability  of  the prosecution.  The conviction should, therefore, be quashed." I  find it impossible to distinguish the facts of that  case from  the present.  Regarding the defalcation of Rs.  21,450 the  chalan that I have already quoted would show  that  the defalcation  had  been committed by the  making  of  certain false  entries  in  the books by Gupta and  Kale  acting  in conspiracy.   Whether these entries correct or not is not  a matter for investigation when the question of the  necessity for  sanction arises.  Applying the test down by  the  Privy Council  in  Gill’s  case(1) the necessity  for  had  to  be determined  by putting the question, could the accused  have reasonably  stated that what he had done, he had  done  ’the course  of  his  official duty?  In the  present  case  when charged  with the defalcation of that amount, he could  have reasonably  said  that  lie  had sent  the  amounts  to  the treasury as the accounts showed and that would have been. an act  done  in the course of his official  duty.   The  other amount  of  Rs. 10,000 was entered in the  accounts  on  the expenditure  side with a note "(diff. of 48)".   This  entry appears  at  a later stage to have been crossed out  but  in arriving at the total of the expanses made on that date  the amount  of  it had been included.  Here also  the  appellant Gupta  could reasonably have said that he had spent the  sum of  Rs. 10,000 in the course of his official duty.   Whether he  had  actually done that or not would be  irrelevant  for deciding  the  necessity for the sanction.  In view  of  the decision  in  Amrik  Singh’s case(1)  which  seems  to  have

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applied the principle deducible from authoritative decisions on this question, I think I must hold that the conviction of the  appellant Gupta for defalcation of the two sums of  Rs. 10,000  and  Rs.  21,450  was bad  in  the  absence  of  the necessary sanction. Mr.  Shroff  for the respondent said that the  decisions  of this  Court in Om Prakash Gupta v. State of U.P.(3)  and  K. Satwant  Singh  v.  State of Punjab ( 4 )  showed  that  the conviction  of the appellant Gupta under s. 409 even in  the absence of the sanction was perfectly valid.  I am unable to accept this contention.  The first of these cases dealt with a charge under s. 409 and it was (1)  [1948] F.C.R. p. 194). (3)  [1957] S.C.R. 423. (2)  [1955] 1 S.C.R. 13(2. (4)  [1960] 2 S.C.R. 89. 216 observed  at P. 437, "Quite a large body of case law in  all the  High Courts has held that a public  servant  committing criminal  breach  of  trust does not  normally  act  in  his capacity  as  a public servant." I do not  think  that  this observation at all helps.  All that it says is that normally an  offence  under  S.  409 cannot  be  said  to  have  been committed  by  a  public servant in  the  discharge  of  his official  capacity.  This clearly implies that there may  be cases  where an offence under that section may be  committed by a public servant in the discharge of his official duties. The  fact  that on the facts of that case it was  held  that criminal breach of trust there alleged had not been done  in the course of official duty would not show that on the facts of  the present case the same view must be taken.  It is  of some  interest  to point out that learned  counsel  for  the respondent did not contend that the facts of that case  were the same as of this case. K.   Satwant Singh’s case(1) was concerned with the  offence of cheating under S. 420 of the Indian Penal Code.  Inam  J. in  delivering  the  judgment of this  Court  in  that  case approved  of  the test formulated in Amrik  Singh’s  case(1) that  the  offence ,charged must have  necessary  connection with  the  performance of the duties of  a  public  servant. What   had  happened  there  was  that  Satwant   Singh,   a contractor,  had entered into conspiracy with  a  government official,   Henderson,  and  obtained  from  him   a   false certificate  of work done by him for the government  and  on the  basis  of  it received money  from  the  government  by cheating the government.  As the two had been tried jointly, it  was contended that the charge against Henderson  was  in respect of an act done in the course of his official duty in issuing the certificate and the trial was bad as no sanction had  been obtained.  Imam J. pointed out that Henderson  had not  been prosecuted for any offence concerning his  act  of certification  and  had  been prosecuted  for  abetting  the appellant in the act of cheating.  All that the case decided was  that  that  abetment by Henderson was  not  an  offence committed  by  him  while acting in  the  discharge  of  his official duty and, therefore, S. 197 had no application.  It seem.,;  to  me  that  the decision  might  well  have  been otherwise  if  Henderson  had been prosecuted  for  a  false certificate given by him.  I find nothing in these two cases which   would  lead  me  to  the  view  that  the   criminal misappropriation  alleged in the present case had  not  been committed by Gupta while purporting to and in the  discharge of  his official duty.  Neither do they furnish  any  reason for distinguishing Amrik Singh’s case(2).  As I have (1) [1960] 2 S.C.R. 89.

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(2) [1955] 1 S.C.R. 1302                             217 already  said,  on  the  facts these  two  cases  are  quite distinct from the case in hand. I would allow both the appeals of the appellant Gupta on the sound that his conviction under s. 409 also is unsustainable in the absence of the sanction. Ramaswami,  J.  Criminal Appeals nos. 77 of 1962 and  74  of 1965  are  brought,  by special leave, on  behalf  of  Gupta against  the judgment of the High Court of  Madhya  Pradesh, Indore  Bench,  Indore dated December  22,  1961  dismissing Criminal Revision Applications nos. 262 and 263 of 1960  and affirming  the  convictions and sentences imposed  on  Gupta under ss. 409 and 477-A of the Indian Penal Code.   Criminal Appeals  nos.  162 and 163 of 1962 are  brought  by  special leave  on  behalf of Kale against the judgment of  the  High Court of Madhya Pradesh Indore Bench,, Indore dated December 22, 1961 dismissing Criminal Revision Applications nos.  265 and 266 of 1960 and maintaining convictions of the appellant under ss. 477-A and 409/109 of the Indian Penal Code. The   appellant-Gupta-was  charged  with  having   committed criminal breach of trust of a sum of Rs. 21,450 on September 29. 1950 and of a sum of Rs. 10,000 on August 25, 1950.   In respect  of  these two items he was also charged  of  having abetted  the  offence of falsification of accounts  said  to have  been committed by the appellant Kale.  With regard  to these  two items appellant Kale was charged under  s.  477-A for  falsification  of accounts and under  ss.  409/109  for abetment   of   criminal  breach  of  trust   committed   by appelant--Gupta.   The  Indore Electric Power  House  was  a Government  concern  it  the time the  alleged  offence  was committed.  The appellant--Gupta-entered the service of  the Power House as a Clerk in the year 1933.  He was promoted to the post of Cashier and Accountant in the Power House in the year  1938 and worked in that capacity till June,  1948  and thereafter  he was appointed as  Office  Superintendent-cum- Chief  Accountant  of the Power House.  At  that  time  Shri Sibhal was the Chief Electrical Engineer and General Manager of  the Power House while Shri Narsingh Venkatesh Murti  was the  Assistant General Manager.  Appellant Kale was  working as  a  Cashier in the relevant period.  In the  Power  House there was a practice of having two daily account-books,  one rough and the other fair and according to the practice,  the daily  transactions of receipt of cash and expenditure  used to  be entered in the rough cash book by the Cashier,  Kale. Each day he would strike the 218 balance  and the appellant Gupta and the  Assistant  General Manager Murti would check and countersign the entries in the rough  cash-books.   A part of the cash balance used  to  be deposited in the Government Treasury and the remaining  cash used  to be kept in the safe of the Power House  under  lock and  key.  According to the prosecution case the key of  the safe  always  remained with appellant Gupta and he  had  the dominion  over the cash in the sale.  Accounts in the  rough cash-book  were  written by appellant Kale and,  as  already stated,  the  accounts  were checked  and  countersigned  by appellant  Gupta every day.  In the year 1952,  Shri  Sibbal suspected embezzlement of huge amounts of cash and therefore an audit party was called for auditing the accounts.  It was found  that  in  all, a sum of Rs. 77,000 and  odd  was  un- accounted  for  and  some of the cash-books  were  not  even written.  The matter was accordingly reported to the police. The  prosecution  case was that though the  rough  cash-book showed  that on September 29, 1950 a sum of  Rs.  21,133-5-0

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was  sent to the Treasury by appellant Gupta,  the  Treasury figures in the challan showed that on that day only a sum of Rs. 1,133-5-0 was deposited into the Treasury and thus a sum of  Rs. 20,000 was dishonestly misappropriated.   Similarly, another  item  of Rs. 1,450 was falsely shown  in  the  said cash-book of the same date as having been deposited into the treasury  though  in fact it was not so deposited  and  thus this  item was also misappropriated.  Hence it  was  alleged that a sum of Rs. 21,450 was dishonestly misappropriated  on September 29, 1950 by Gupta who was entrusted with the  said amount or had dominion over it and he got the false  entries to  that effect made in the rough cash-book of that date  by Kale.   With  regard  to the other item of  Rs.  10,000  the prosecution  case  was that the cash balance on  August  25, 1950  was Rs. 63,894-9-6 but the entry of Rs. 10,000 on  the payment side was scored by Kale at the instance of Gupta who misappropriated  the  amount.  The false entry was  made  by Kale  to  cover  the abstraction of  Rs.  10,000  and  later cancelled by Gupta.  It therefore, remained unaccounted for. It  was also alleged that in respect of this  amount,  Gupta committed  criminal  breach  of trust and  abetment  of  the offence  of  the  falsification  of  accounts.   The  charge against Kale was that with regard to both Rs. 21,450 and Rs. 10,000 he wilfully made the false entries in the daily  cash book  and  that  he also abetted criminal  breach  of  trust committed by Gupta.  It was stated by Gupta in defence  that he was not in possession of the safe or its keys or the cash of the Power House at the relevant time.  His case was  that he worked as Cashier up to May-June, 1948 and thereafter  he was promoted 219 as  Office Superintendent-cum-Chief Accountant and  that  he handed over the charge of the post of the Cashier and of the cash and the key of the safe to Sadashiv Bapat (P.W. 5)  and after  that he had nothing to do with the cash of the  Power House.   He  also  denied  having  abetted  the  offence  of falsification  of  account said to have  been  committed  by Kale.  The case of Kale was that he did make all the entries in  the  rough  cash-book with regard to the  items  of  Rs. 21,450  and Rs. 10,000 but Kale alleged that he  made  those entries  at  the  instance of appellant Gupta  who  was  his Office  Superintendent.  It was pleaded by Kale that he  did not abet appellant Gupta in the criminal misappropriation of the  amounts.   The trying Magistrate  held  that  appellant Gupta was in charge of the cash, the safe and its key at the relevant  period and that he was entrusted or  had  dominion over  the  cash  of the Power House and  that  he  committed criminal  breach of trust in regard to the two sums  of  Rs. 21,450  and  Rs. 10,000.  He also held that  in  respect  of these  two  sums  appellant Gupta  abetted  the  offence  of falsification  of accounts under S. 477-A, Indian Penal  Co& by appellant Kale who made false entries in the rough  Cash- Book.  Accordingly he convicted appellant Gupta under S. 409 and  477-A/109, Indian Penal Code and sentenced him on  each of  the  two  counts  in both the  cases.   With  regard  to appellant  Kale the trying Magistrate rejected  his  defence that  he  made entries in the rough  cash-book  mechanically without any fraudulent intention.  His finding was that Kale made  the  entries  in  the  cash-book  wilfully  with   the intention  to  defraud the Power House and that  he  abetted appellant  Gupta  in  the  criminal  misappropriation.    He accordingly  convicted  Kale under ss. 477-A and  409/  109, Indian  Penal  Code in the two criminal cases  for  the  two respective amounts of Rs. 21,450 and Rs. 10,000.  Both  Kale and Gupta preferred appeals against their convictions in the

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Court  of  the Sessions Judge, Indore but the  appeals  were dismissed by the First Additional Sessions Judge, Indore who maintained  the convictions with regard to the two items  of the   cash-book  already  mentioned.   The  two   appellants thereupon  filed revision applications to the High Court  of Madhya Pradesh which dismissed the revision applications and confirmed  the  conviction  and sentence  imposed  upon  the appellants. Criminal Appeals Nos. 77 of 1962 & 74 of 1965 The  principal question of law arising in these two  appeals is whether the conviction of the appellant--Gupta-under  ss. 409  and  477-A  of  the Indian Penal  Code  is  illegal  as sanction  of  the  State Government was  not  given  to  his prosecution under the up. CI/65-15 220 provisions  of  s.  197  of  the  Criminal  Procedure  Code. Section  197(1)  of the Criminal Procedure  Code  states  as follows :               "197.  (1)  When  any person who  is  a  Judge               within the meaning of section 19 of the Indian               Penal  Code, or when any Magistrate,  or  when               any  public servant who is not removable  from               his  office save by or with the sanction of  a               ’State    Government’    or    ’the    Central               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  employed  in               connection  with the affairs of the Union,  of               the Central Government; and               (b)   in  the  case of a  person  employed  in               connection with the affairs of a State, of the               State Government.". Hori  Ram Singh v. Emperor(1) is a decision of  the  Federal Court  on  the necessity for sanction under S.  270  of  the Government of India Act, 1935, which is similar to s. 197(1) of the Code of Criminal Procedure in its purpose and intent. The facts in that case were that a Sub-Assistant Surgeon was charged under s. 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own  residence,  and under s. 477-A, with having  failed  to enter  them  in  the  stock  book.   The  sanction  of   the Government  had not been obtained ’or the prosecution  under s.  270  of the Government of India Act.  The  question  for decision  in  that  case  was  whether  such  sanction   was necessary.  It was held by the Federal Court that the charge under s.  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 s.  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’.  In the  course  of  the judgment, Varadachariar, J. discussed the scope of s. 197(1) of the Criminal Procedure Code 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 (1)  [1939] F.C.R. 159.                             221

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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. Varadachariar, J. expressed his agreement with the first  of the  three  views.  At page 187 of the  Report  the  learned Judge states :               "In  one group of cases, it is  insisted  that               there  must be something in the nature of  the               act  complained  of that attaches  it  to  the               official  character of the person  doing  it.-               [cf.  In re Sheik Abdul Khadir  Saheb  (A.I.R.               1917   Mad.  344);  Kamisetty  Raja   Rao   v.               Ramaswamy  (I.L.R. 50 Mad. 74) Amanat  Ali  v.               Emperor  (A.I.R.  1929 Cal. 724);  Emperor  v.               Maung  Bo  Maung (I.L.R. 13  Rang.  540);  and               Gurushidayya Shantivirayya Kulkarni v. Emperor               (A.I.R. 1939 Bom. 63)].  In another group more               stress has been laid on the circumstance  that               the  official  character  or  status  of   the               accused gave him the opportunity to commit the               offence.  It seems to me that the first is the               correct  view.  In the third group  of  cases,               stress is laid almost exclusively on the  fact               that  it  was at a time when the  accused  was               engaged in his official duty that the  alleged               offence  was said to have been committed  [see               Gangaraju v. Venki (I.L.R. 52 Mad. 602, at  p.               605)  quoting from Mitra’s Commentary  on  the               Criminal  Procedure  Code].  The  use  of  the               expression  ’while acting’ etc. in s.  197  of               the  Criminal Procedure Code particularly  its               introduction by way of amendment in 1923)  has               been  held to lend some support to this  view.               While I do not wish to ignore the significance               of  the  time factor, it does not seem  to  me               right  to  make  it  the  test.   To  take  an               illustration  suggested in the course  of  the               argument, if a medical officer, while on  duty               in the hospital, is alleged to have  committed               rape on one of the patients or to have  stolen               a  jewel  from  the patient’s  person,  it  is               difficult to believe that it was the intention               of  the  Legislature  that  he  could  not  be               prosecuted  for such offences except with  the               previous sanction of the Local Government. In  Gill v. The King. (1) the question arose  directly  with reference to s. 197(1 ) of the Criminal Procedure Code.   In that (1)  [1948] F.C.R. 19. 222 case  the  accused  was charged under  s.  161  with  taking bribes, and under s. 120-B with conspiracy.  On the question whether  sanction was necessary under s. 197(1) it was  held by  the Judicial Committee 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,(1)  Lord Simonds observed in the course of his judgment at page 40 of the Report :               "In   the   consideration  of  s.   197   much               assistance is to be derived from the  judgment               of the Federal Court in Hori Ram Singh v.  The

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             Crown  ([1939] F.C.R. 159), and in  particular               from   the   careful  analysis   of   previous               authorities  which  is  to  be  found  in  the               opinion of Varadachariar, J. Their  Lordships,               while  admitting the cogency of  the  argument               that in the circumstances prevailing in  India               a  large measure of protection from  harassing               proceedings   may  be  necessary  for   public               officials, cannot accede to the view that  the               relevant words have the scope that has in some               cases  been given to them.  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,  he does in virtue  of  his  office.               Applying  such a test to the present case,  it               seems  clear that Gill could not  justify  the               acts  in  respect of which he was  charged  as               acts done by him by virtue of the office  that               he  held.  Without further examination of  the               authorities    their    Lordships,     finding               themselves  in  general  agreement  with   the               opinion  of  the  Federal Court  in  the  case               cited,  think  it sufficient to  say  that  in               their opinion no sanction under s. 197 of  the               Code of Criminal Procedure was needed." The view expressed by the Judicial Committee in Gill v.  The King(1) was followed by the Judicial Committee in the  later cases (1) [1939] F.C.R. 159. (2) [1948] F.C.R. 19.                             223 Albert  West Meads v. The King(1) and Phanindra  Chandra  v. The  King (2) and has been approved by this Court in  R.  W. Mathams v. State of West Bengal. (3) It is not every offence committed  by  a 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 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. Applying  the  principle  to the present  case,  we  are  of opinion  that  sanction  of the  State  Government  was  not necessary  for the prosecution of Gupta under S. 409 of  the

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Indian   Penal   Code,   because   the   act   of   criminal misappropriation was not committed by the appellant while he was  acting  or purporting to act in the  discharge  of  his official  duties and that offence has no  direct  connection with  the duties of the appellant as a public  servant,  and the  official  status of the appellant  only  furnished  the appellant  with an occasion or an opportunity of  committing the offence. With  regard to the other charge under ss. 477-A/109 of  the Indian  Penal Code the legal position is different  and,  in our  opinion,  the  sanction  of  the  State  Government  is necessary  for  the  prosecution of the  appellant  on  this charge because it was committed within the scope of official duties, though in dereliction of them. On  behalf  of  the  appellant Mr.  Chari  referred  to  the decision  of  this  Court in Amrik Singh  v.  The  State  of Pepsu(4)  and submitted that even with regard to the  charge under  s. 409, Indian Penal Code the sanction of  the  State Government  would be necessary.  In that case the  appellant was a Sub-Divisional Officer in the Public Works Department, Pepsu  and at the material date he was in charge of  certain works at a place called Karhali.  It was (1) 75 A. 185.                               (2) 76 I.A. 10. (3)  [1955] 1 S.C.R. 216.                     (4)  [1955]  1 S.C.R. 1302. 224 part  of  his duties to disburse the wages  to  the  workmen employed  in the works, and the procedure  usually  followed was that he drew the amount required from the treasury,  and paid  the same to the employees against their signatures  or thumb-impressions  in the monthly acquittance roll.  In  the roll  for April, 1951, one Parma was mentioned as a  khalasi and a sum of Rs. 51 shown as paid to him for his wages,  the payment being vouched by thumb impression.  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, chat  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.   It  was  held by the High Court of  Pepsu  that  the appellant  was  guilty both under s. 465 and s. 409  of  the Indian  Penal Code and the sanction of State Government  was not necessary for either of the charges.  It was conceded on behalf of the respondent in this Court that the sanction was necessary  with regard to the charge under s. 465  but  with regard  to the charge under s. 409 also it was held by  this Court  that sanction of the State Government  was  necessary and  conviction  of the appellant on both  the  charges  was quashed.   Speaking  for  the Court  Venkatarama  Ayyar,  J. approved  the  principle expressed by the Federal  Court  in Hori  Ram  Singh  v. Emperor(1) and  also  by  the  Judicial Committee in Gill v. The King (2 ) Mr. Chari relied much  on the  decisions of this Court in Amrik Singh v. The State  of Pepsu(3)  and  submitted that it supported  the  appellant’s case.   We  need not examine how far the decision  in  Amrik Singh’s(3)  case can stand in view of the earlier  decisions of  the Judicial Committee and the two subsequent  decisions of a larger Bench of this Court in Om Prakash Gupta v. State of  U.P.(4) and in Satwant Singh v. The State of  Punjab.(1) In Om Prakash Gupta v. State of U.p.,(4) it was pointed out, at pace 437 of the Report, that sanction to the  prosecution of a public servant under s. 409 of the Indian Penal Code is not necessary since the public servant is not acting in  his official  capacity in committing criminal breach  of  trust.

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In the other case, Satwant Singh v. The State of  Punjab(5), the   appellant-Satwant  Singh-submitted  claims   totalling several  lakhs of -rupees to the Government of Burma on  the allegation   that  he  had  executed  works   and   supplied materials.   These  claims were sent by  the  Government  of Burma to Major Henderson at (1)  [1939] F.C.R. 159. (3)  [1955] 1 S.C.R. 1302. (5) [1960] 2 S.C.R. 99. (2)  [1948] F.C.R. 19. (4)  [1957] S.C.R. 423.                             225 Jhansi  in March and May, 1943, for verification as  he  was the officer who had knowledge of these matters.  The officer certified  many of these claims to be correct and  sent  the papers back to Simla.  On the certification of the claims by Henderson, the Finance Department of the Government of Burma sanctioned  the  same  and the Controller  of  the  Military Clain-is  at  Kolhapur  was  directed  to  pay  the  amounts sanctioned.   On the request of Satwant Singh  cheques  were drawn  on  the Imperial Bank of India at  Lahore  and  these cheques  were encased at Lahore.  In all Satwant  Singh  was paid Rs. 7,44,865 and odd.  Subsequently, suspicions of  the Government of Burma were aroused and it was discovered  that many  of  the  claims, including some of  those  of  Satwant Singh,  were false.  According to the  prosecution,  Satwant Singh had committed the offence of cheating punishable under s.  420, Indian Penal Code and Henderson had abetted him  in the commission of that offence by falsely certifying Satwant Singh’s claims to be true, knowing that they were false  and there  by  had  committed an  offence  punishable  under  s. 420/109, Indian Penal code. It was argued before this  Court that no sanction under s. 197 of the Criminal Procedure Code by  the proper authority had been given for the  prosecution of  Henderson  and  he could not be  tried  without  such  a sanction  and  that  the joint trial of  Henderson  and  the appellant  without such a sanction vitiated the trial.   The argument  was rejected by a Bench of 5 Judges of this  Court on  the ground that if 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 discharge of his official duty.  It was  urged on  behalf  of  the apellant that the act  of  Henderson  in certify  in the appellant’s claims as true was  an  official act  because  it was his duty either to certify  or  not  to certify a claim as true and that if he falsely certified the claim  as  true he was acting or purporting to  act  in  the discharge  of his official duty.  The argument was  rejected by  this  Court  for  the  reason  that  Henderson  was  not prosecuted   for   any  offence  concerning   his   act   of certification  but that he was prosecuted for  abetting  the appellant to cheat.  At page 100 of the Report Imam, J.  has stated :               "We have 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 discharge of  his               official  duty,  as  such  offences  have   no               necessary  connection  between  them  and  the               performance 226               of  the  duties  of  a  public  servant,   the               official  status furnishing only the  occasion               or  opportunity  for  the  commission  of  the

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             offences  (vide  Amrik  Singh’s  case-1955   1               S.C.R. 1302).  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               [vide  Matajog  Dobey’s case-[1955]  2  S.C.R.               925].   It  was urged, however,  that  in  the               present   case   the  act  of   Henderson   in               certifying the appellant’s claims as true  was               an official act because it was his duty either               to  certify or not to certify a claim as  true               and that if he falsely certified the claim  as               true he was acting or purporting to act in the               discharge  of his official duty.  It is,  how-               ever, to be remembered that Henderson was  not               prosecuted for any offence concerning his  act               of  certification.   He  was  prosecuted   for               abetting  the  appellant  to  cheat.   We  are               firmly of the opinion that Henderson’s offence               was  not one committed by him while acting  or               purporting  to  act in the  discharge  of  his               official duty." We consider that the present case falls within the principle laid  down  by this Court in Satwant Singh v. The  State  of Punjab(1)  by which we are bound and the view we have  taken is  supported by the decisions of the Federal Court in  Hori Ram  Singh  v. Emperor(1) and of the Judicial  Committee  in Gill v. The King(1). It was argued by Mr. Shroff on behalf of the respondent that sanction   of  the  State  Government  was  given  for   the prosecution  of  the  appellant  on July  1,  1953  and  the prosecution witnesses were examined by the Magistrate in the case  against  the  appellant  after  that  date  and  that, therefore, the conviction of the appellant under s. 477-A of the Indian Penal Code cannot be held to be legally  invalid. We  do not think there is justification for  this  argument. It  appears from the Order Sheet that the  police  submitted charge-sheet  against the appellant on April 4,  1953.   The Order sheet shows that on April 6, 1953 the Additional  City Magistrate, Indore City made the following order :               "Challan be recorded in R. Register.   Accused               no.  1 & 2 will be present in the  Court  from               the Central Jail (1) [1960] 2 S.C.R. 89. (2) [1939] F.C.R. 159. (3) [1948] F.C.R. 19. 227               on  15-4-53.  Prosecution witnesses  according               to challan no. 1, 2, 3, 4 be summoned on  date               15-4-53.   ’Me file be put up at the  time  of               evidence of prosecution on 15-4-53." For some reason or the other the witnesses were not  present on  April  15, 1953 and the case was adjourned  for  several dates  and the, evidence of the witnesses was  recorded  for the  first time on July 6, 1953, but there is no doubt  that the  Additional  City  Magistrate  took  cognizance  of  the offence   on  April  6,  1953  when  he  ordered  that   the prosecution  witnesses should be summoned and the  appellant should  be  produced in the Court from the Central  Jail  on April  15,  1953.   The  legal  position  is  not  seriously disputed on behalf of the respondent and Mr. Shroff  frankly conceded  that cognizance was taken by the  Additional  City

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Magistrate  on April 6, 1953.  It follows,  therefore,  that there  is  no  proper sanction for the  prosecution  of  the appellant  with regard to the charge under s. 477-A,  Indian Penal  Code  and  the conviction of the  appellant  on  that charge must be quashed. For the reasons expressed, we partly allow these two appeals and  quash  the conviction of the  appellant--Gupta--of  the charge under S. 477-A of the Indian Penal Code and  sentence imposed on that charge in both these cases.  With regard  to the charge under S. 409, Indian Penal Code, we maintain  the conviction and sentence imposed by the lower Courts in  both the cases. Criminal Appeals nos. 162 & 163 of 1962. On  behalf  of the appellant-Kale-it was  submitted  by  Mr. Barlingay  that though the false entries in the rough  cash- book dated September 29, 1950 and August 25, 1950 were  made by the appellant, he was not criminally liable under s. 477- A  or ss. 409/ 109 of the Indian Penal Code as  the  entries were made by him at the instance of the appellant Gupta  who was  Superintendent  of  his  office  and  superior  to  the appellant  in official position.  It was also  contended  on behalf  of  the  appellant that he did not  make  the  false entries wilfully and with intent to defraud the Power  House and  that  he  had no knowledge of the  criminal  intent  of appellant  Gupta.   The  case  of  the  appellant  has  been rejected by the lower Courts and we do not propose to review the evidence on this aspect of the case because the question raised is essentially one of fact and there is a  concurrent finding  of  the lower Courts that the  appellant  made  the false entries in the account-books wilfully and with  intent to defraud the Power 228 House  and  that he abetted appellant  Gupta  in  committing criminal breach of trust with regard to both the amounts  in question.  It also appears from the evidence of Laxman, P.W. 6, and Joshi, P.W. 3, that when the audit party arrived  the appellant  Kale approached Mhaskar for the issue of a  blank cash book without any indent.  The evidence of Joshi-P.W. 3- also shows that Gupta had, in the presence of the appellant, asked  the witness to write the accounts in the  rough  cash book newly issued.  ’The evidence of these two witnesses has been  accepted by the lower Courts as true and it  has  been found  that the appellant and Gupta jointly made an  attempt to  have  the accounts rewritten and  manipulated.   In  our opinion,  no  case  is made out  for  interfering  with  the conviction  and sentence imposed on the appellant  under  s. 409/109  or  s.  477-A of the Indian Penal  Code  and  these appeals must be dismissed.                            ORDER     In Criminal Appeals Nos. 77 of 1962 and 74 of 1965. In accordance with the majority Judgment, these appeals  are partly allowed. 229