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PETITIONER: DR. LAKSHMANSINGH HIMATSINGH VAGHELE

       Vs.

RESPONDENT: NARESH KUMAR CHANDRASHANKAR JHA AND ANR.

DATE OF JUDGMENT24/07/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) THOMMEN, T.K. (J) KULDIP SINGH (J)

CITATION:  1990 AIR 1976            1990 SCR  (3) 511  1990 SCC  (4) 169        JT 1990 (3)   241  1990 SCALE  (2)136

ACT:     Code  of Criminal Procedure 1973--Section  197--Sanction to prosecute--When necessary for--’Public  servant’--’Public analyst’-Sanction to prosecute--Whether necessary.

HEADNOTE:     The appellant, an employee of the Municipal  Corporation Ahmedabad  was  holding the post of Laboratory  Officer  and while he was so holding the post, he by a Notification dated 21.12.1966, issued by the State Government, was appointed as a  Public  Analyst for the local area within  the  municipal limits of the Corporation. The respondent filed a  complaint before the Magistrate for offences punishable under Sections 465, 468 and 20 1. I.P.C. alleged to have been committed  by the  appellant  while exercising his functions as  a  Public Analyst.  The appellant moved the High Court  under  Section 482,  for  quashing the criminal proceedings  sought  to  be initiated  against him by the said complaint. His  principle contention was that he being a public servant removable from office  only by the State Government, the  magistrate  could not take cognizance of the alleged offences and that  previ- ous  sanction of the State Government as contemplated  under section 197, Cr.P.C. was necessary. The High Court  rejected the contention of the appellant and dismissed the  petition. He has filed this appeal after obtaining special leave  from the Court. Dismissing the appeal, this Court,     HELD: The privilege or immunity from prosecution without sanction  extends only when the accused is a public  servant of  the kind mentioned in Section 197, Cr.P.C. He must be  a public servant as defined in Section 21 of the Indian  Penal Code  and not removable from his office save by or with  the sanction  of the State Government or the Central  Government as  the case may be. The offence must also be one  committed by  the  accused while acting or purporting to  act  in  the discharge of his official duty. Section 197, Cr.P.C. clearly intends  to draw a line between public servants and to  pro- vide  that only in the case of the higher ranks  should  the sanction  of the Government to their prosecution  be  neces- sary. [513C-D, H]

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512     The  words "removable from office" occurring in  Section 197 signify removal from the office one is holding. [514B]     In  the instant case, the appellant was not holding  any public  office in connection with the affairs of the  State. The  State  Government  had merely entrusted  him  with  the functions  of  a Public Analyst which could be  granted  and taken  by  an administrative Act. It was on account  of  his being  employed  by the Municipal Corporation  that  he  was appointed as a Public Analyst in the cadre against any post. The  Prevention of Food Adulteration Act also does not  con- tain any deeming provision to treat the Public Analyst as  a public servant. [514D-E]     The appellant is not therefore a public servant  remova- ble only by the State Government. [514G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 387 of 1990.     From  the  Judgment  and Order dated  12.1.1984  of  the Gujarat  High Court at Ahmedabad in Misc.  Crl.  Application No. 48 of 1982. S.H. Sheth and S.C. Patel for the Appellant. B. Datta, Sunil Dogra and P.H. Parekh for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. Leave granted.     The  appellant is aggrieved by the judgment of the  High Court  holding  that  sanction of the  State  Government  as required  under Section 197, Cr.P.C., is not  necessary  for taking  cognizance of the offences against the appellant  on the  basis  of the complaint filed by  the  respondent.  The appellant  is  an  employee of  the  Municipal  Corporation, Ahmedabad. While holding the post of Laboratory Officer, the State  Government by a Notification  dated  21.12.1966.under Section  8 of the Food Adulteration Act, 1954 appointed  the appellant  as a Public Analyst for the local area  comprised within  the  limits of the Corporation.  The  complaint  was filed  by the respondent before the Magistrate for  the  of- fences  punishable under Sections 465,468 and  201,  I.P.C., alleged to have been committed by the appellant while  exer- cising the functions as Public Analyst. 513     The  appellant moved the High Court under  Section  482, Cr.P.C., for quashing the criminal proceedings on the ground that,  he being a public servant removable from office  only by the State Government the Magistrate could not take cogni- zance  of the offence alleged to have been  committed  while discharging the duties as Public Analyst without the  requi- site  sanction  under Section 197, Cr.P.C.  The  High  Court rejected this contention and dismissed the petition.     Under Section 197(1), Cr.P.C., when a public servant not removable  from his office save by or with the  sanction  of the  Government, is accused of any offence alleged  to  have been  committed by him while acting or purporting to act  in the  discharge  of his official duty, no  Court  shall  take cognizance of such offence except with the previous sanction of  the Government. The section extends immunity from  irre- sponsible,  frivolous and vexatious prosecution. The  privi- lege  of immunity from prosecution without sanction  extends only  when the accused is a public servant of the kind  men- tioned  therein. He must be a public servant as  defined  in Section  21 of the Indian Penal Code and not removable  from his office save by or with the sanction of the State Govern-

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ment  or  the  Central Government as the case  may  be.  The offence  must  also be one committed by  the  accused  while acting or purporting to act in the discharge of his official duty. Section 21, I .P.C., reads as under: 21.  "Public servant"--The words "public servant"  denote  a person  falling  under any of the  descriptions  hereinafter following, namely: Twelfth .--Every person--       (a)  in the service or pay of the Government or  remu- nerated  by  less or commission for the performance  of  any public duty by the Government;       (b)  in  the service or pay of a  local  authority,  a corporation established by Or under a Central, Provincial or State Act or a Government company as defined in Section 6 17 of the Companies Act, 1956 ( 1 of 1956).     Section  197,  Cr.P.C., clearly intends to draw  a  line between public servants and to provide that only in the case of the higher ranks 514 should  the sanction of the government to their  prosecution be  necessary. While a public servant holding an  office  of the kind mentioned in the Section is as such public  servant appointed to another office, his official acts in connection with  the latter office will also relate to the  former  of- fice. The words "removable from office" occurring in Section 197  signify  removal  from the office he  is  holding.  The authority  mentioned in the section is the  authority  under which the officer is serving and competent to terminate  his services. If the accused is under the service and pay of the local authority, the appointment to an office for exercising functions  under  a particular statute will  not  alter  his status as an employee of the local authority.     The appellant herein is admittedly the Laboratory  Offi- cer  in the service and pay of the Municipal Corporation  of Ahmedabad. The appointment as Public Analyst by the  Govern- ment  does not confer on him the status of a public  servant or  an officer under the service and pay of the  Government. He  is  not remunerated by any fee by  the  Government.  The appellant  was not the employee of the State Government  and was  not  employed  in connection with the  affairs  of  the State.  He was not holding any public office  in  connection with  the  affairs of the State. The  State  Government  had merely entrusted him with the functions of a Public  Analyst which  could be granted and taken by an administrative  act. It  was  on account of his being employed by  the  Municipal Corporation that he was appointed as a Public Analyst by the Government.  He  is not appointed as Public Analyst  in  the cadre against any post. The Prevention of Food  Adulteration Act also does not contain any deeming provision to treat the Public Analyst as a public-servant.     The  appellant  is holding an office from  which  he  is removable by the Local Authority and not by the  Government. The cancellation of the appointment as Public Analyst  would not amount to removal from office. Section 197, Cr.P.C.,  in this context contemplates the removal of the appellant  from the office of the Laboratory Officer and not his transfer or removal  from the office of the Public Analyst. The  removal of the appellant from the office of Public Analyst would not affect  his office as a Laboratory Officer under  the  Local Authority  and would not amount to removal from office.  The appellant  is not therefore a public servant removable  only by  the  State Government. The High Court was right  in  its view. We accordingly dismiss the appeal. Y. Lal                                 Appeal dismissed. 515

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