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PETITIONER: P. ARULSWAMI

       Vs.

RESPONDENT: THE STATE OF MADRAS

DATE OF JUDGMENT: 29/08/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. BHARGAVA, VISHISHTHA DAYAL, RAGHUBAR

CITATION:  1967 AIR  776            1967 SCR  (1) 201

ACT: Madras Village Panchayats Act (Mad.  Act X of 1960), s. 106- In  language  similar to s. 197(1)  Cr.   P.C.--Sanction  of State  Government for prosecution for offence under  s.  409 I.P.C.-Whether required-Circumstances in which such sanction necessary.

HEADNOTE: The  appellant, who was the President of a Panchayat  Board, was  charged  with an offence under s. 409, I.P.C.  for  not bringing  to ’account in the book of the Panchayat  Board  a sum  of Rs. 4,000, belonging to the Board.  The trial  court was not satisfied that the prosecution had proved the charge and  therefore acquitted the appellant but, on  appeal,  the High  Court accepted the prosecution evidence and  convicted him. It  was  contended  on  behalf of  the  appellant  that  the prosecution  against  him was not maintainable for  want  of sanction by the State Government tinder s. 106 of the Madras Village Parnchayats Act (Mad.  Act X of 1960); but the  High Court rejected this contention. On appeal to this Court. HELD  : Sanction of the State Government was  not  necessary for  the prosecution of the appellant under s.  409,  Indian Penal Code. As in the case of s. 197(1) of the Criminal Procedure  Code, which is in similar language to s. 106 of the Madras Act, it is  not  every offence committed by a  public  servant  that requires  sanction for prosecution; 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

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when  it is either within the scope of the official duty  or in excess of it that the protection is claimable. [205 D-F] Case law reviewed.

JUDGMENT: CRIMINAL      APPELLATE     JURISDICTION     :      Criminal Appeals Nos. 130 & 131 of 1964. Appeals  by special leave from the Judgment and order  dated December  3,  1963  of the Madras  High  Court  in  Criminal Appeals Nos. 380 of 1961 and 72 of 1962 respectively. Sup.C.I./66-14 202 R.   Ganapathy   Iyer,  for  the  appellant  (in  both   the appeals). A. V. Rangam, for the respondent (in both the appeals). The Judgment of the Court was delivered by Ramaswami, J. Criminal Appeal No. 130 of 1964 This appeal is brought, by special leave, from the  judgment of the Madras High Court dated December 3, 1963 in  Criminal Appeal No. 380 of 1961 by which the appellant was  convicted under  s. 409, Indian Penal Code and sentenced  to  rigorous imprisonment for one year. The  appellant  was  elected  President  of  the  Nerinjipet Panchayat Board on May 17, 1958.  At that time he was a duly elected  member of the Board.  It appears that a sum of  Rs. 4,000  of the Board had been invested in four National  Plan Savings  Certificates  in the Bhavani Post Office.   It  was alleged that the appellant cashed them on February 11,  1959 and  did  not bring the amount in the account books  of  the Panchayat  Board.  The defence of the appellant was that  he signed the certificates and handed them over to P.W. 4,  the Deputy  Panchayat  Officer  of the block  within  which  the village was located.  This was done by the appellant because P.W.  4 approached him and asked him that the  Board  should subscribe through him for small savings certificates for Rs. 7,000 just as the Panchayat had subscribed Rs. 7,000 through Tass  liar  representing the Revenue Department.   For  that purpose P.W. 4 got Rs. 500 in cash on December 2, 1958 and a cheque for Rs. 2,500 on February 9, 1959.  It was the  -case of  the  appellant that P.W. 4 represented that  along  with this  SUM  of  Rs. 3,000 he would  cash  the  National  Plan Savings  Certificates  of the total value of Rs.  4,000  and purchase  small  savings ,certificates for  Rs.  7,000  that being  his quota from the Narinjipet Panchayat.   To  enable P.W.  4  to make the purchase, the  appellant  endorsed  the National  Plan Savings Certificates and handed them over  to P.W.  4.  The  Sub-Divisional  Magistrate,  Erode  was   not satisfied  that  the prosecution had proved the  charge  and therefore  acquitted the appellant, but on appeal  the  High Court  accepted  the prosecution evidence that  it  was  the appellant  who ,cashed the certificates at the  Post  Office and not P.W. 4 and accordingly found the appellant guilty of the offence. It  was argued on behalf of the appellant in the High  Court that  prosecution was not maintainable for want of  sanction by the State Government under s. 106 of the Madras Village 2 03 Panchayats  Act (Madras Act X of 1950)  (hereinafter  called the ’Madras Act’).  That section reads as follows :               "106.  When the president, executive authority               or  any  member,  is accused  of  any  offence               alleged  to have been committed by  him  while

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             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." Sanction  for  the prosecution was, however, given  in  this case by the Collector and not by the Government under powers purported to have been delegated to him under s. 127 of  the Madras Act which provides :               "127. (1) The Government may, by notification,               authorize any authority, officer or person  to               exercise  in any local area, in regard to  any               panchayat  or any class of panchayats  or  all               pancbayats  in  that area, any of  the  powers               vested in them by this Act except the power to               make  rules; and may in like  manner  withdraw               such authority. The  High Court held that no sanction of the Government  was necessary as the appellant had ceased to hold the office  of President when the prosecution was launched and further that the sanction of the Collector was sufficient in law. The  question of law involved in this appeal is whether  the sanction of the Government under S. 106 of the Madras Act is necessary  for  the  prosecution of the  appellant  for  the offence under s. 409, Indian Penal Code. On  behalf  of  the  appellant it  was  contended  that  the sanction  granted by the Collector was not valid in law  and sanction  should have been given under s. 106 of the  Madras Act  by  the  State Government.  It was  submitted  that  s. 127(1)  of the Madras Act has not authorised the  Government to delegate the power for granting sanction under S. 106, to the Collector, and that what was delegated was the power  of the  State  Government in respect of any  panchayat  or  any class of panchayats or all panchayats in any local area, but the  power under S. 106 that could be exercised was  only  a power  in  regard  to the President or  any  member  of  the panchayat.   It was therefore submitted that the  Government did  not delegate its powers under S. 106 of the Madras  Act by virtue of the authority conferred under S. 127(1).  It is not necessary for us to express any concluded opinion on the argument put forward by the appellant, for we consider  that no sanction of the Government under s. 106 of the Madras Act is  necessary  for the prosecution of the appellant  on  the charge  under s. 409, Indian Penal Code, and the  conviction of  the  appellant  on that charge is not  invalid  on  this account. 204 Hori Rain Singh v. Emperor(1) was 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 and S. 106 of the  Madras Act.   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   for   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

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or  conversion, which is the act complained of.  In Gill  v. The King(2) the question arose directly with reference to s. 197(i)  of  the Criminal Procedure Code.  In that  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 sanction 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               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,               (1) [1939] F. C. R. 159.         (2) [1948] F.               C. R. 19.               20 5               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;  Albert  West  Meads v.  The  King(2)  and  Phanindra Chandra  v. The King(3) and has been approved by this  Court in  R.  W. Mathams v. State of west Bengal(4).   It  is  not therefore  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

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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.  The  same principle  has  been expressed by this Court in  Om  Prakash Gupta  v. State of U.P.(5) in which it was pointed out  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.  In a later case--Satwant Singh v. The State of Punjab(6), it was held 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.  The same view his been taken by this Court in a later decision-Baijnath  Gupta  and Ors. v. The  State  of  Madhya Pradesh(7),  and it was held that the sanction of the  State Government was not necessary for the prosecution of (1) [1948] F.C.R. 19.    (2) 75 I.A. 185. (3) 76 I.A. 10.     (4) [1955] 1 S.C.R. 216. (5) [1957] S.C.R. 423.   (6) [1960] 2 S.C.R. 89. (7)  [1966] 1 S.C.R. 210. 20 6 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  oppor- tunity of committing the offence. Section  106 of the Madras Act is similar in language to  s. 197  of  the  Criminal Procedure Code and  for  the  reasons already expressed we are of the opinion that the sanction of the  State Government was not necessary for  prosecution  of the   appellant  under  S.  409,  Indian  Penal  Code.    We accordingly  reject the argument of learned Counsel for  the appellant  on  this  aspect of the  case  and  dismiss  this appeal. Criminal Appeal No. 131 of 1964 This appeal is brought, by special leave, from the  judgment of the Madras High Court dated December 3, 1963 in  Criminal Appeal  No.  72  of 1962 convicting  the  appellant  of  the offence  under s. 409, Indian Penal Code and sentencing  him to rigorous imprisonment for 6 months. The  question of law involved in this appeal is the same  as in Criminal Appeal No. 130 of 1964 and for the reasons given in that case we hold that the sanction of the Government  is not necessary for prosecution of the appellant under s. 409, Indian  Penal  Code and the conviction of the  appellant  on that  charge  is not defective in law",.  This  appeal  also must be dismissed. R.K.P.S.                        Appeals dismissed. 207