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PETITIONER: KESHAVLAL MOHANLAL SHAH

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 17/03/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1961 AIR 1395            1962 SCR  (1) 451

ACT: Criminal   Trial-Magistrate  dismissed  from   service   for criminal  misconduct-Prosecution  of-Cognizance  by   court- Sanction   to  prosecute,  if  necessary-Code  of   Criminal Procedure, 1898 (Act 5 of 1898), s. 197.

HEADNOTE: The appellant, a Magistrate, was dismissed from service as a result  of a departmental enquiry.  On a complaint filed  by the  State Government he was convicted under s. 409  of  the Indian  Penal  Code.   The point urged was  that  the  trial Magistrate  should not have taken cognizance of the  offence without  the previous sanction in view of the provisions  of s. 197 of the Code of Criminal Procedure. Held, that no previous sanction was necessary for a Court to take  cognizance  of an offence committed  by  a  Magistrate while  acting or purporting to act in the discharge  of  his official  duty  if he had ceased to be a Magistrate  at  the time  the complaint was made or police report was  submitted to the Court, i.e., at the time of the taking of  cognizance of the offence committed. S.  A.  Venkataraman  v.  The  State,  [1958]  S.C.R.  1037, applied.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 127  of 1960. Appeal  by special leave from the judgment and  order  dated August  4,  1958,  of the former High  Court  at  Bombay  in Criminal Revision Application No. 728 of 1958. B.   P. Maheshwari, for the appellant. 452 Vir  Sen  Sawhney,  R.  H. Dhebar and T.  M.  Sen,  for  the respondent. 1961.  March 17.  The Judgment of the Court was delivered by RAGHUBAR  DAYAL,  J.-This  appeal,  by  special  leave,   is directed against the judgment of the Bombay High Court.  The appellant  was a’ Third Class Magistrate at Sanand in  1951. He received Rs. 200 in cash from Amar Singh Madhav Singh  as deposit  for security to be released on bail.   This  amount

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was  not  credited in the Criminal Deposit  Rojmal  and  the appellant  thereby committed criminal breach of  trust  with respect to the amount. The  appellant was dismissed from service on April 4,  1953, as  a result of a departmental enquiry.  On June 9, 1954,  a complaint  was  filed  on behalf of the  State  against  the appellant.   He was convicted of the offence under  s.  409, Indian Penal Code, by the Trial Magistrate.  The  conviction was  confirmed  by  the  Extra  Additional  Sessions  Judge, Ahmedabad.  His revision was dismissed by the High Court. The  only  point urged in this appeal is  that  the  learned Magistrate should not have taken cognizance of this  offence without  the  previous sanction of the State  Government  in view  of  the  provisions  of  s.  197,  Code  of   Criminal Procedure. It  is  not  disputed  that a Court  could  not  have  taken cognizance  of this offence against the appellant if he  had been a Magistrate on June 9, 1954.  The appellant was not  a Magistrate  on June 9, 1954, when the complaint  was  filed. The question then is whether the provisions of s. 197 of the Code  of  Criminal Procedure prohibit a  Court  from  taking cognizance  of  an offence committed by a  Magistrate  while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date  the Court takes cognizance.  Sub-section (1) of s. 197, Code  of Criminal Procedure, reads:               "(1) When any person who is a Judge within the               meaning  of  section 19 of  the  Indian  Penal               Code, or               453               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." There  cannot be much scope for the contention that a  Court is prohibited from taking cognizance of an offence committed by  a  Judge  while  acting or  purporting  to  act  in  the discharge  of his official duty only when that person  is  a Judge  at  the time cognizance is taken, as  otherwise  full effect  will not be given to the expression ’any person  who is  a Judge’, in the subsection.  Similar expression is  not used in describing a Magistrate or a public servant.  But it is  clear that those two persons should also be  ’Magistrate or  a public servant’ at the time cognizance is taken of  an offence committed by them while acting or purporting to  act in the discharge of official duty. In  connection with ’public servant’ the expression  who  is not  removable from his office save by or with the  sanction of  a State Government or the Central  Government  indicates that.   It is only when the public servant concerned  is  in service  that  the question of his removal from  office  can arise.   If  the public servant has ceased to  be  a  public servant, no such question arises.  Therefore it seems proper to construe the expression ’when any Magistrate’ in the sub-

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section to mean ’when a person who is a Magistrate’. Even  if the expression be not construed in this  form,  the section  says: ’when any Magistrate...... is accused of  any offence’.    This  indicates  that  it  is  only  when   the accusation  is against a Magistrate that the Court will  not take cognizance of an offence committed by 454 him  while  acting in the discharge of  his  official  duty, without previous sanction.  If a person is not a  Magistrate at  the  time  the accusation is made, the  Court  can  take cognizance without previous sanction. It  has  been strenuously urged on behalf of  the  appellant that  the expression ’when any Magistrate is accused of  any offence’  refers to the stage when the accusation  is  first made  against  the Magistrate, that is to say,  when  it  is alleged for the first time that the Magistrate has committed such an offence.  There seems to be no justification to  add the  word  ’first’  and read this expression  as  ’when  any Magistrate  is first accused of any offence’.  The  occasion when such an allegation is made for the first time against a Magistrate  is  not in connection with  the  Court’s  taking cognizance  of the offence but will always be either when  a complaint is made to a superior officer in the department or to  the police.  Both these authorities are free to  inquire into  the  accusation.   It is only  when  the  departmental enquiry or the police investigation leads to the  conclusion that  the matter is fit for going to Court that a  complaint would  be made or a police report would be submitted Io  the proper  Court for taking action against the Magistrate.   It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not. This  view  finds further support from the language  of  the clauses  (a) and (b).  The previous sanction,  according  to these  clauses,  will be of the Central  Government  if  the Magistrate is employed in connection with the affairs of the Un  ion  and of the State Government if he  is  employed  in connection  with the affairs of a State.  If the  person  is not employed, no sanction is necessary.  Whether the  person is  so  employed or not, is to be seen  shortly  before  the submission  of the complaint or police report to the  Court. The  sanction  can  be given by the proper  authority  on  a consideration  of the allegations and evidence available  to establish them and therefore only after the investigation is complete.  The submission of the 455 complaint  or police report is expected to follow the  grant of sanction within a reasonable time. A similar question arose in S. A. Venkataraman v. The  State (1) in connection with the interpretation of the  provisions of s. 6 of the Prevention of Corruption Act, 1947 (Act II of 1947).  Sub-section (1) of that section reads:               "(1)  No  Court shall take  cognizance  of  an               offence  punishable under s. 161 or s. 165  of               the Indian Penal Code or under subsection  (2)               of section 5 of this Act, alleged to have been               committed by a public servant except with  the               previous sanction-               (a)   in the case of a person who is  employed               in  connection with the affairs of  the  Union               and  is not removable from his office save  by               or   with   the  sanction   of   the   Central               Government, of the Central Government;               (b)   in the case of a person who is  employed

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             in connection with the affairs of a State  and               is  not removable from his office save  by  or               with the sanction of the State Government,  of               the State Government;               (c)   in the case of any other person, of  the               authority  competent  to remove him  from  his               office."               This Court said at p. 1046:               "The  words  in s. 6(1) of the Act  are  clear               enough  and  they  must be  given  effect  to.               There is nothing in the words used in s.  6(1)               to   even  remotely  suggest   that   previous               sanction  was necessary before a  court  could               take  cognizance  of  the  offences  mentioned               therein in the case of a person who had ceased               to  be a public servant at the time the  court               was asked to take cognizance, although he  had               been such a person at the time the offence was               committed........  A  public servant  who  has               ceased to be a public servant is not a  person               removable  from  any  office  by  a  competent               authority." The  same can be said with respect to the provisions  of  s. 197  of the Code of Criminal Procedure.  We  therefore  hold that  no previous sanction is necessary for a Court to  take cognizance of an offence committed (1)  [1958] S.G.R. 1037- 456 by  a  Magistrate while acting or purporting to act  in  the discharge  of  his _official duty if he had ceased to  be  a Magistrate  at  the  time the complaint is  made  or  police report  is submitted to the Court, i.e., at the time of  the taking   of  cognizance  of  the  offence   committed.    We accordingly dismiss the appeal. Appeal dismissed.