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Judgment
A. Badharudeen, J.
The sole accused in C.C.No.48/2016 on the files of the Enquiry Commissioner and Special Judge, Thalassery is the appellant herein and he assails the judgment in the said case dated 30.11.2018. The offences alleged against the appellant are punishable under Section 13(1)(c) r/w 13(2) of the Prevention of Corruption Act 1988 (hereinafter referred to as ‘the PC Act’) as well as Sections 409, 420, 468 and 477A of the Indian Penal Code (hereinafter referred to as ‘IPC’).
Heard the learned senior counsel for the appellant/accused and the learned Public Prosecutor appearing for the Vigilance. Scrutinized the verdict impugned and the evidence available.
In this matter (arising out of C.C.No.48/2016), the prosecution allegation is misappropriation of Rs.2,42,510/- by the appellant/accused while working as Tribal Extension Officer, Sulthan Bathery for the period from 22.08.1996 till December 1996. Alleging misappropriation of Rs.1,530/- for the period from 23.08.1995 to 06.02.1996, another case also was registered as C.C.No.47/2016. The learned Special Judge tried C.C.No.47/2016 and the present case (C.C.No.48/2016) jointly and recorded evidence. PWs.1 to 29 were examined and Exts.P1 to P40 were marked on the side of the prosecution. No defence evidence was adduced. Finally, the learned Special Judge found that, as far as misappropriation alleged in C.C.No.47/2016, the prosecution failed to prove the entrustment of the said sum to the appellant. But, in the instant case, the learned Special Judge found commission of offence punishable under Section 13(1)(c) r/w 13(2) of the PC Act as well as Sections 409 and 477A of IPC and accordingly, the appellant was convicted and sentenced as under:
“a)Accused is sentenced to undergo Simple Imprisonment for 2 years (two years) and to pay fine of 50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for 3 (three) months for the offence punishable u/s. 13 (1) (c) r/w 13 (2) of P.C Act.
b)Accused is sentenced to undergo Simple Imprisonment for a period of 2 years (two years) and to pay fine of 50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for a period of 3 (three) months for the offence punishable u/s 409 IPC.
c)Accused is sentenced to undergo Simple Imprisonment for a period of 2 years (two years) and to pay fine of ₹ 50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for a period of 3 (three) months for the offence punishable u/s 477 (A) IPC.
d)The sentences shall run concurrently
e)Set off is allowed as contemplated u/s. 428 CrPC.
f)The bail bond executed by the accused stands cancelled.”
While challenging the conviction and sentence imposed on the appellant, the learned Senior Counsel appearing for the appellant contended that, since the learned Special Judge had jointly tried both cases and acquitted the appellant in C.C. No. 47/2016, the appellant ought to have been acquitted in the present case as well, on the same grounds. He further contended that the prosecution had miserably failed to establish the entrustment of an amount of ₹2,55,120/- to the appellant during the period from 1996 to 1997 and that the Cashier, who allegedly entrusted the said amount to the appellant, was not examined by the prosecution. Thus, the entrustment failed to be proved and for the said reason, the misappropriation alleged should not have been found. It is also submitted that, in this case, Ext.P37 prosecution sanction issued through PW24 does not speak of any sanction under Section 197 of the Code of Criminal Procedure (for short, ‘the Cr.PC’) to prosecute the appellant for the offences punishable under Sections 409 and 477A of IPC. In this connection, learned senior counsel had placed the Constitution Bench decision of the Apex Court reported in Matajog Dobey v. H. C. Bhari and Others (1956 KHC 365) and contended that in order to prosecute the public servant for the IPC offences, sanction to prosecute the public servant under Section 197 Cr.PC is necessary. Apart from the above decision, the learned senior counsel had relied on the decisions reported in Ganguly N. K (Prof.) v. CBI New Delhi (2015 KHC 4753), State of Madhya Pradesh v. Sheetla Sahai and Others (2009 KHC 933) and Manjunath G. C. v. Seetaram (2025 KHC OnLine 7238).
The learned counsel had placed reliance on the decision in Ganguly N. K (supra) and in paragraphs 22 to 25, the Apex Court held as under:
“22.Reliance was further rightly placed by the learned senior Counsel on the decision of a constitution bench of this Court in the case of Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, which pertained to an income tax investigation. It was alleged by the Appellant therein that while conducting a search, the officials of the income tax department had forcibly broke open the entrance door of the house and interfered with the boxes and drawers of the tables. It was also alleged by the Appellant therein that the officials tied him and beat him up. Upon an enquiry of the said complaint, the magistrate came to the conclusion that a prima facie case had been made out and issued process. During the course of trial, the issue pertaining to want of sanction was urged. This Court held as under:
“Article 14 does not render Section 197, Code of Criminal Procedure ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.”
On the other hand, ordinary citizens not so engaged do not require this safeguard. It was further observed that:
“...Whether sanction is to be accorded or not, is a matter for the Government to consider. The absolute power to accord or withhold sanction on the Government is irrelevant and foreign to the duty cast on that Court which is the ascertainment of the true nature of the act.”
The Court finally summed up the result of the discussion as follows:
“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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” (Emphasis laid by this Court)
In the case of Satwant Singh v. State of Punjab, AIR 1960 SC 266, a constitution bench of this Court while examining the scope of Section 197 of Code of Criminal Procedure, observed as follows:
“It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another... 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 of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences.........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.”
In the case of R.R. Chari referred to supra, while examining the scope of Section 197 of Code of Criminal Procedure, this Court held as follows:
“It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants form frivolous prosecution....”(Emphasis laid by this Court)
The learned senior Counsel further placed reliance on a three judge bench decision of this Court in the case of Baijnath Gupta v. State of Madhya Pradesh, AIR 1966 SC 220, wherein the question that arose before this Court was whether the conviction of the Appellant Under Sections 409 and 477A of the Indian Penal Code was illegal for want of sanction. This Court observed as follows:
“It is not that every offence committed by a public servant that requires sanction for prosecution Under Section 197(1) of the Code of Criminal Procedure; 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 Section 197 of the Code of Criminal Procedure 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. (Emphasis laid by this Court)
In the case of B. Saha v. M.S. Kochar (1979) 4 SCC 177, the constitution bench of this Court observed that the question of sanction Under Section 197 of Code of Criminal Procedure could be raised and considered at any stage of the proceedings. On the issue of when the protection of Section 197 of Code of Criminal Procedure is attracted, this Court held as under:
“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 be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.”
The learned senior Counsel further placed reliance on the decision of a constitution bench of this Court in the case of R.S. Nayak v. A.R. Antulay , (1984) 2 SCC 183, wherein certain observations were made with regard to Section 6 of P.C. Act, 1988, as under:
“Therefore, it unquestionably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants....The Legislative advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit interference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the legislature clearly provided that that authority done would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office...(Emphasis laid by this Court)
Mr. P.P. Khurana, the learned senior Counsel appearing on behalf of some of the Appellants has further placed reliance upon the judgments of this Court in the cases of R. Balakrishna Pillai v. State of Kerala, (1996) 1 SCC 478, Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500, Shankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 and State of M.P. v. Sheetla Sahai, (2009) 8 SCC 617, in support of his submission that the acts constituting the offence were alleged to have been committed by the Appellant in discharge of his official duty and that being the fact, it was not open to the Special Judge court to take cognizance of the offences without obtaining the previous sanction of the Central Government by the Respondent.
The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in the case of Prakash Singh Badal v. Union of India, (2007) 1 SCC 1 to buttress his contention that no sanction was required to be taken in the instant case as the Appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants. The act of the Appellants of transferring the plot in question in favour of the aforesaid society, allotted in favour of ICMR for the purpose of construction of the flats and allotting the same in favour of the employees of ICPO-ICMR society without obtaining the order from either CEO or Chairman of the NOIDA with a motive to make wrongful gain for themselves after entering into a conspiracy cannot be said to be an act that has been carried out in discharge of their official duty. The learned Additional Solicitor General placed reliance on the following paragraphs of the Prakash Singh Badal case (supra):
“49.Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable Under Section 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra's case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.
50.The offence of cheating Under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.”
Mr. P.P. Khurana and Mr. Gopal Subramaniam, the learned senior Counsel appearing on behalf of some of the Appellants, on the other hand, contend that the decision in the Prakash Singh Badal case needs to be appreciated in light of the facts of that case. Thus, while stating that the offences Under Sections 420, 467, 468, 471 and 120B of Indian Penal Code can by no stretch of imagination and by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of his official duty, this Court did not mean that merely because an official was charged with an offence under these sections, no sanction was required to be taken. The Learned Counsel placed reliance on the following paragraph of the judgment to emphasise the same:
“51.In Baijnath v. State of M.P. (1966 (1) SCR 210) the position was succinctly stated as follows:
“….it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.””
The learned senior Counsel also placed reliance on the three judge bench decision of this Court rendered in the case of Shreekantiah Ramayya Munipalli, referred to supra, wherein it was held as under:
“18...If Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it....
19.Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be established.... Now it is evident that the entrustment and/or domino here were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity....”
From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government Under Section 197 of Code of Criminal Procedure, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the Respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the Respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government Under Section 197 of Code of Criminal Procedure was required to be taken by the Respondent, before taking cognizance and passing an order issuing summons to the Appellants for their presence.”
The Apex Court in paragraphs 66 to 69 of the decision in State of Madhya Pradesh (supra) held as under:
“66.This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.
67.Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Anr. v. Union of India and Anr. (2005) 8 SCC 202. In that case, it was held:
‘9. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
10.Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11.If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.’
68.Were the respondent Nos. 1 to 7 required to act in the matter as a part of official duty? Indisputably, they were required to do so. Be he an Executive Engineer, Superintending Engineer, Chief Engineer, Engineer-in-Chief, Secretary or Deputy Secretary, matters were placed before them by their subordinate officers. They were required to take action thereupon. They were required to apply their own mind. A decision on their part was required to be taken so as to enable them to oversee supervision and completion of a government project. The Minister having regard to the provisions of the Rules of Executive Business was required to take a decision for and on behalf of the State. Some of the respondents, as noticed hereinbefore, were required to render their individual opinion required by their superiors. They were members of the Committee constituted by the authorities, viz., the Minister or the Secretary. At that stage, it was not possible for them to refuse to be a Member of the Committee and/or not to render any opinion at all when they were asked to perform their duties. They were required to do the same and, thus, there cannot be any doubt whatsoever that each one of the respondent Nos. 1 to 7 was performing his official duties.
69.For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das and Anr, 2006(4)SCC584. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 : 1955 (2) SCR 925 wherein it was held:
17.Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Barn Singh v. Crown Sulaiman, J. observes:
‘The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.’
The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at p. 187:
‘There must be something in the nature of the act complained of that attaches it to the official character of the person doing it.’
In affirming this view, the Judicial Committee of the Privy Council observe in Gill case: "A public servant can only be said to act or 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 ... 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." Hori Ram case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. King-Emperor but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by Section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. King does not carry us any further; it adopts the reasoning in Gill's case.”
The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar (1979) 4 SCC 177 in the following terms:
‘17. 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., "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.’
18.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 be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.’
[See also R. Balakrishna Pillai v. State of Kerala and Anr. (1996) 1 SCC 478]”
Learned counsel for the appellant also placed reliance on the decision in Manjunath (supra), wherein the Apex Court in paragraphs 28 to 36 held as under:
“28.Section 197 of the Code of Criminal Procedure is set out herein below for convenience:
“197.Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or 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-
(a)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:”
29.A plain reading of Section 170 of the Police Act reveals that the legislature, in its wisdom, has sought to afford a statutory safeguard to certain public functionaries, including Commissioners, Magistrates, Police Officers, and Reserve Police Officers. The provision is categorical in its stipulation that where any offence is alleged to have been committed, or any wrong alleged to have been occasioned, by such officials in the discharge of their duties or in the exercise of their lawful authority, no court shall entertain any prosecution or suit against them without the prior sanction of the Government. Importantly, the protective umbrella of Section 170 is not confined solely to acts strictly within the bounds of authority but extends to acts done ostensibly in excess of such authority, so long as there exists a reasonable nexus between the act complained of and the discharge of official functions.
30.A careful reading of Section 197 of the Code of Criminal Procedure unequivocally delineates a statutory bar on the Court's jurisdiction to take cognisance of offences alleged against public servants, save without the prior sanction of the appropriate government. The essential precondition for the applicability of this provision is that the alleged offence must have been committed by the public servant while acting in the discharge of, or purported discharge of, their official duties. The protective mantle of Section 197 of the Code of Criminal Procedure, however, is not absolute; it does not extend to acts that are manifestly beyond the scope of official duty or wholly unconnected thereto. Acts bereft of any reasonable nexus to official functions fall outside the ambit of this safeguard and do not attract the bar imposed Under Section 197 of the Code of Criminal Procedure.
31.Both the aforesaid provisions serve a similar protective function. While Section 170 of the Police Act mandates prior sanction for prosecuting a public official for "acts done under colour of, or in excess of, such duty or authority," Section 197 of the Code of Criminal Procedure requires prior sanction where a public official is Accused of having committed "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The underlying rationale of both these statutory provisions is to safeguard public functionaries from frivolous or vexatious prosecution for actions undertaken in good faith in the discharge of, or purported discharge of, their official duties, thereby ensuring that the fear of litigation does not impede the efficient functioning of public administration.
32.This Court in B. Saha v. M.S. Kochar,: (1979) 4 SCC 177 ("B. Saha") observed that 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 of the Code of Criminal Procedure, are capable of a narrow as well as a wide interpretation. This Court observed that 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, that is entitled to the protection of Section 197 of the Code of Criminal Procedure, 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 Madhya Pradesh, (AIR 1966 SC 220), "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 Under Section 197 Code of Criminal Procedure will be attracted".
33.This Court in Amod Kumar Kanth v. Association of Victim of Uphaar Tragedy, (2023) 16 SCC 239 held that the State performs its obligations through its officers/public servants and every function performed by a public servant is ultimately aimed at achieving public welfare. Often, their roles involve a degree of discretion. But the exercise of such discretion cannot be separated from the circumstances and timing in which it is exercised or, in cases of omission, when the omission occurs. In such circumstances, the courts must address, whether the officer was acting in the discharge of official duties. It was observed that even when an officer acts under the purported exercise of official powers, they are entitled to protection Under Section 197 of the Code of Criminal Procedure. This protection exists for a valid reason so that the public servants can perform their duties fearlessly, without constant apprehension of legal action, as long as they act in good faith. While Section 197 of the Code of Criminal Procedure does not explicitly mention the requirement of good faith, such a condition is implied and is expressly included in several other statutes that offer protection to public servants from civil and criminal liability.
34.While dealing with the provisions of Section 197 of the Code of Criminal Procedure, read with Section 170 of the Police Act, this Court in D. Devaraja observed that not every offence committed by a police officer automatically gets this protection. The safeguard Under Section 197 of the Code of Criminal Procedure and Section 170 of the Police Act is limited. It applies only if the alleged act is reasonably connected to the officer's official duties. The law does not offer protection if the official role is used as a mere excuse to commit wrongful acts. However, it was held that the protection of prior sanction will be available when there is a reasonable connection between the act and their duty. While enunciating when the protection of prior sanction will be applicable, this Court held that even if a police officer exceeds his official powers, as long as there is a reasonable connection between the act and his duty, they are still entitled to the protection requiring prior sanction. Excessiveness alone does not strip them of this safeguard. The language of both Section 197 of the Code of Criminal Procedure and Section 170 of the Police Act is clear that sanction is required not only for acts done in the discharge of official duty as well as for the acts purported to be done in the discharge of official duty and/or acts done "under colour of or in excess of such duty or authority". Sanction becomes mandatory if there is a reasonable connection between the act and the officer's official duties, even if the officer acted improperly or exceeded his authority. Therefore, if a complaint against a police officer involves actions reasonably related to his official role, the Court cannot take cognisance unless sanction from the appropriate Government has been obtained Under Section 197 of the Code of Criminal Procedure and Section 170 of the Police Act. The relevant portion from the abovementioned judgment is as follows:
“66.Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected Under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government.
67.Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given Under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.
68.If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him.
69.The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.
70.To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of the law.
35.Recently, this Court in Gurmeet Kaur v. Devender Gupta, 2024 SCC OnLine SC3761 dealt with the object and purpose of Section 197 of the Code of Criminal Procedure which reads as follows:
‘22. ... the object and purpose of the said provision is to protect officers and officials of the State from unjustified criminal prosecution while they discharge their duties within the scope and ambit of their powers entrusted to them. A reading of Section 197 of the Code of Criminal Procedure would indicate that there is a bar for a Court to take cognisance of such offences which are mentioned in the said provision except with the previous sanction of the appropriate government when the allegations are made against, inter alia, a public servant. There is no doubt that in the instant case the Appellant herein was a public servant but the question is, whether, while discharging her duty as a public servant on the relevant date, there was any excess in the discharge of the said duty which did not require the first Respondent herein to take a prior sanction for prosecuting the Appellant herein. In this regard, the salient words which are relevant Under Sub-section (1) of Section 197 are "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 cognisance of such offence except with the previous sanction". Therefore, for the purpose of application of Section 197, a sine qua non is that the public servant is Accused of any offence which had been committed by him in "discharge of his official duty". The said expression would clearly indicate that Section 197 of the Code of Criminal Procedure would not apply to a case if a public servant is Accused of any offence which is de hors or not connected to the discharge of his or her official duty.’
36.In light of the aforesaid judgments, the guiding principle governing the necessity of prior sanction stands well crystallised. The pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the Code of Criminal Procedure and Section 170 of the Police Act is attracted. In such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted improperly while discharging his duty.”
8.Whereas, it is submitted by the learned Public Prosecutor that the contention raised by the learned senior counsel that, in view of the acquittal of the appellant in C.C.No.47/2016, the appellant, in the present case should have also been acquitted, for the same reasons, cannot be justified. According to him, in C.C.No.47/2016 where misappropriation of Rs.1530/- was alleged, learned Special Judge relied on the evidence of PW4 to hold that no such amount was entrusted to the appellant during the period and the expense thereof was not at the helm of the appellant. According to him, in fact Ext.P37 prosecution sanction speaks about the sanction for prosecuting the accused for all the offences under the PC Act as well as under the IPC and therefore, in fact there is sanction to prosecute the accused for all the offences and the contention raised by the learned senior counsel for the appellant that no sanction was obtained to prosecute the appellant/accused for the IPC offences would not succeed.
9.Adverting to the rival arguments, the points arise for consideration are:
(i)Whether the Special Court is right in holding that the appellant/accused committed offence punishable under Section 13(1)(c) r/w 13(2) of PC Act?
(ii)Whether the Special Court erred in holding that the appellant/accused committed the offence under Section 409 IPC?
(iii)Whether the Special Court went wrong in holding that the appellant/accused committed the offence under Section 477A IPC?
(iv)Whether the verdict would require interference?
(v)The order to be passed?
Point Nos.(i) to (v)
10.In the present case, while considering the contentions raised by both sides, it is necessary to examine whether the acquittal of the appellant in C.C. No. 47 of 2016 and the reasons thereof would be applied to the present case. In this connection, it is relevant to note that, in paragraph 60 of the judgment, the learned Special Judge found that the evidence of PW4 would clearly establish that the Food Support Programme conducted in 1995-1996, was implemented directly from the office of the Tribal Development Officer, wages for the beneficiaries concerned were distributed by the clerical staffs and on this premise, for want of entrustment of the amount alleged to have been misappropriated therein, that would come to Rs.1530/-, the appellant was acquitted. In fact, the period of misappropriation in C.C.No.47/2016 is 1995-1996.
11.In the present case (C.C.No.48/2016), the specific allegation is that the accused got entrustment of Rs.2,55,120/-towards the wages for the beneficiaries under the Food Support Programme for the year 1996-1997 and in this regard, the prosecution gives much emphasis to the evidence of PWs.1 to 3 and Exts.P10, P12 and P16. It was found by the learned Special Judge that, as deposed by PW3, the accused received a total sum of Rs.2,55,120/- from PW3 for the implementation of the Food Support Programme for the year 1996-1997 and the accused only distributed Rs.13080/-. But, the evidence would not suggest or justify the expenditure of Rs.2,42,220/- (the actual amount is Rs.2,42,040/- on mathematical logic). It was also found by the learned Special Judge that Exts.P12 and P16 muster rolls, supported by the evidence of PWs.1 to 3 and also the evidence of PWs.12, 14, 15, 16, 18 and PWs.21 to 23 would show that they did not receive the said amount; thus, misappropriation was done after getting entrustment of the same.
12.In this connection, it is necessary to evaluate the evidence of PW1. PW1 examined in this case is the then T.D.O, Sulthan Bathery from 20/02/1998, who handed over Ext. P2 to P10 documents to the investigator on 25/07/1998, as per Ext.P1 seizure mahazar. Ext.P2 is the letter addressed by him to the then vigilance DySP along with the bills received from the accused. He had identified those bills as Ext.P3 series. Ext.P4 and P5 are the Food Support Programme Wages Portion Payment Register Vol. 1 for the period from 1995 to 1996 and 1996 to 1997 respectively. Exts.P6 and P7 are the Muster Rolls Vol. 2 for the period from 1995 to 1996. Ext.P8 is the Government order regarding the implementation of Food Support Programme and Ext.P9 is the file in the office of T.D.O. pertaining to that programme. Ext.P10 is the CRD Register maintained in the office of T.D.O., also let in evidence through PW1. According to PW1, as per Ext.P9(a) there were 1063 Adivasi families as beneficiaries for the Food Support Programme to support the Adivasis who were struggling due to unemployment during monsoon season (June-September). As per Ext.P9(b) all the relevant documents for implementing the programme were given to T.E.O. The programme was being implemented by the T.E.O with the help of tribal volunteers and the beneficiaries and the list of the beneficiaries would be prepared with the assistance of tribal volunteers, and in this regard, the T.E.O. should obtain signatures of the beneficiaries in the Muster Rolls from his office, in the presence of tribal volunteers and he should forward the report along with vouchers and Muster Rolls to the office of T.D.O after implementing the programme. If there would be any balance in the fund, the same should be remitted in the treasury and that challan receipt also should be furnished to the T.D.O.
` 13. He had testified further that as per Ext.P4, a total sum of ₹20,40,000/- was received by the T.D.O. from District Collector for the implementation of the said programme through various T.E.O's and as per page no's 1 to 5 in Ext. P5, an amount ₹7,320/-on 23/08/1995 and ₹10,860/- on 24/08/1995 was given to the accused. As per Ext.P5, a total amount of ₹.10,20,000/- was received by the T.D.O. from District Collector for the implementation of the Food Support Programme for the year 1996-1997, out of which an amount of ₹63,780/- on 22/08/1996, ₹63,780/- on 19/09/1996 and ₹1,27,560/- on 30/10/1996 (Totaling to ₹2,55,120/-) was given to accused. He has also deposed that during the period 1995-1996 accused had received a total sum of ₹5,05,560/- from T.D.O. by 19 occasions, out of which an amount of ₹5,04,030/- only was disbursed and balance amount of ₹1,530/-was not returned to T.D.O. As per Ext. P10, no amount was seen refunded by the accused in connection with the Food Support Programme during the period from 08/1995 to 02/1996. According to him, no documents regarding the refund of the balance amount in Food Support Programme had been received from T.E.O. The signatures in the column titled as T.E.O in both Ext.P6 & P7 are that of the accused. Though signatures and thumb impressions of the beneficiaries were obtained in many pages in Ext.P6 & P7, they were kept blank.
Adding flesh and blood to the evidence of PW1, the then T.E.O, Sulthan Bathery during the year 2000, examined as PW2 also given evidence in support of the prosecution case. He testified that he was the successor of the accused. According to him, police had seized Ext.P12 under Ext.P11 seizure mahazar. Ext.14 under Ext.P13, Ext.P16 under Ext.P15 and Exts.P18 & P19 under Ext.P17 seizure mahazar respectively from him. He deposed that as per Ext.P12, the Muster Roll, an amount of ₹13,080/- was distributed. He has deposed that signatures in some of the pages in this document were that of the accused. He had further deposed that as per Ext.P14 (a), accused had worked as T.E.O., Sulthan Bathery from 16/04/1994 to December 1996. Many columns in Ext.P16 Muster Roll were not filled up properly. As per Ext. P5 an amount of ₹2,55,120/- was entrusted to the accused by the T.D.O. for the implementation of the Food Support Programme 1996-1997. But Ext.P12 & P16 documents would go to show that an amount of ₹13,080/-alone was distributed and there was no document as to what happened to the balance amount of ₹2,42,220/-. He had also identified Exts.P18 & P19 as the list of beneficiaries in Nenmeni Panchayath and Sulthan Bathery Panchayath respectively.
In addition to PW1 and PW2, PW3 the T.D.O., Sulthan Bathery, during the period from 08/08/1996 to 16/11/1996 also given evidence in support of the prosecution. According to him, during his tenure Food Support Programme was implemented in Bathery and he used to hand over the fund received from District Collector for that programme to T.E.O's for implementation. He had identified Ext.P20 as the Cash Book Vol.45 maintained in his office for the period from 1995 to 1996. He categorically affirmed that as per Ext.P10 (a) to P10 (c) the CRD Register maintained in his office, amounts of ₹63,780/- on 22/08/1996, ₹63,780/- on 19/09/1996 and ₹1,27,560/- on 30/10/1996 respectively were handed over to the accused for implementing the said project for the year 1996-1997 and accused had acknowledged the receipt of the said amount. He too put his signatures in Ext.P10(a) to P10(c). Ext.P21 also was identified by PW3. According to him, the details regarding the implementation of the project would be available in this document and the fund were released to the T.E.O's only after furnishing the copy of guide lines regarding the implementation.
In this connection, it is necessary to refer the ingredients to attract offence under Section 409 of IPC. Section 409 of IPC is extracted as hereunder:
“409.Criminal breach of trust by public servant, or by banker, merchant or agent: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Section 409 of IPC is pari materia to Section 316(5) of the Bharatiya Nyaya Sanhita, 2023 (`BNS’ for short) and Section 316(5) of BNS reads as under:
“316(5): Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Analysing the ingredients to attract offence under Section 409 of IPC, its applicability is as held by the Apex Court in [(2012) 8 SCC 547 : AIR 2012 SC 3242], Sadhupati Nageswara Rao v. State of Andhra Pradesh, as pointed out by the learned counsel for the petitioner.
In Sadhupati Nageswara Rao’s case (supra), the Apex Court, while upholding the conviction held that, where the appellant, an agent entrusted with the distribution of the rice under the “Food for Work Scheme” to the workers on production of coupons, was charged with misappropriation of 67.65 quintals of rice, the evidence proves that there was entrustment of property to the accused.
In order to sustain a conviction under section 409 of the IPC, two ingredients are to be proved; namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and (ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC. The basic requirements to bring home the accusation under Section 405 IPC are to prove conjointly; (i) entrustment and (ii) whether the accused was actuated by a dishonest intention or not, misappropriated it or converted it to his own use or to the detriment of the persons who entrusted it, as held by the Apex Court in the decision reported in Sadhupati Nageswara Rao’s case (supra).
The gravamen of the offence under Section 409 of IPC is dishonest intention on the part of the accused but to establish the dishonest intention, it is not necessary that the prosecution should establish an intention to retain permanently, the property misappropriated. An intention, wrongfully to deprive the owner of the use of the property for a time and to secure the use of that property for his own benefit for a time would be sufficient. Section 409 of IPC cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed, is ipso facto, guilty of criminal breach of trust; but something more than that is required to bring home the dishonest intention.
Tracing the ingredients of the offence punishable under Section 477A of IPC, Section 477A provides as under:
“Section 477A – Falsification of Accounts : “Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
Section 344 of BNS is corresponding to Section 477A of IPC. The same reads as under:
“344.Falsification of accounts:- Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
The three ingredients to prove the offences are:
That at the relevant point of time, the accused should be a clerk or officer or servant or acting in that capacity ;
That he should destroy, alter, mutilate or falsify any book, electronic record, paper, writing, valuable security or account, which belongs to or was in the possession of his employer and
The act should have been done willfully and with an intention to defraud. To convict a person under section 477A of the IPC, the prosecution has to prove that there was a willful act, which had been made with an intent to defraud and while proving “Intention to defraud”, the prosecution has to further prove the two elements that the act was an act of deceit and it had caused an injury. In the present case, there may be an injury, but there is no deceit.
For the offence under Section 477A of IPC, what has got to be proved is twofold viz., that the person who commits the offence is a clerk, officer or servant, and secondly, that there was intent to defraud. It is sufficient, to satisfy the words of the section, to prove that the person charged under this section is one who undertakes to perform and does perform the duties of a clerk or servant whether in fact he is a clerk or servant or not, and though he is under no obligation to perform such duties and receives no remuneration. The emphasis is upon the words "in the capacity of a clerk, officer or servant”.
To attract section 477A, the-employee concerned must destroy, alter, mutilate or falsify book or accounts etc, of the employer, inter alia, with intent to defraud. The term "intend to defraud" has already been explained in Section 25 of IPC. It contains two elements, viz., deceit and injury. A person is said to deceive another when by practising suggestio falsi or suppressio veri or both, he intentionally induces another to believe a thing to be true. "Injury" defined in Section 44 of IPC means any harm whatever illegally caused to any person in body, mind, reputation and property. In the decision reported in [1976 CrLJ 913 (SC) : 1976 Cr LR (SC) 178 : (1976) 2 SCC 819 : AIR 1976 SC 2140], Harman Singh v. Delhi Administration, the Apex Court held that whenever the words "fraud" or "intent to defraud" or "fraudulently" occur in the definition of a crime, two elements at least are essential to the commission of the crime; namely, firstly, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury to a risk of possible injury by means of that deceit or secrecy. Where the accused prepared a false travelling allowance bill, presented it to a sub-treasury and withdrew the amount, it meant securing an advantage by deceitful act and causing corresponding loss to the State. The offence will fall under section 477A and the fact that the accused subsequently paid over the entire amount is not a matter to be considered.
As per Section 13(1)(c) and (d) of the PC Act, a public servant is said to come under the offence of `criminal misconduct’, if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
Here, the crucial evidence relied upon by the learned Special Judge as well as prosecution to find entrustment of Rs.2,55,120/- is that of PW3, well corroborated by the evidence of PW1 and PW2. According to PW3, he had held the post of Tribal Development Officer (TDO) from 08.08.1996 to 16.11.1996. The money meant for the Food Support Programme was encashed by him and after entering the same in the cash book, the same would be entrusted to the Tribal Extension Officer. Ext.P20 was the cash book during the period. His version is that, as per Ext.P10 ie CRD register volume II on 24.07.1995 to 31.12.1996 and as per Ext.P10(a) page no 196, Ext.P10(b) page No.214, Ext.P10(c) page No.250 Rs.63,780/- were entrusted to Noolpuzha Tribal Extension Officer, who is the accused herein. In order to indicate the acceptance of the same, the accused had put his signature therein. PW3 identified the signature of the accused. According to him, he had accepted the signature as that of the Entrusting Officer. Thus, the evidence of PW3, fostered by the evidence of PW1 and PW2, is that a total of Rs.2,55,120/- was entrusted to the Tribal Extension Officer by himself as per Ext.P10. During cross-examination, he admitted that he had worked there only for a period of three months, and the custodian of the money would be Cashier of the DD Office and as per his direction, the cashier handed over Rs.2,55,120/- to the accused. He had also stated that the handwritings in Ext.P10(a) to (c) were also that of the accused and the same were written by the Cashier.
Relying on this evidence, it is argued by the learned senior counsel for the appellant that the Cashier, being the custodian of the cash, was not examined and therefore, entrustment of the amount of Rs.2,55,120/- is not at all established and for the sole reason, none of the offences would attract. In this connection, it is relevant to note that, here the evidence of PW3, the Tribal Development Officer is that the money would be given to Tribal Extension Officer for implementation by him. His version further is that here the Cashier had handed over Rs.2,55,120/- to the accused as directed by him and in this regard, he had given emphasis to the entries in Exts.P10(a) to (c). When Ext.P10(a) to (c) would show receipt of Rs.2,55,120/- by the accused by acknowledging the same by putting his signatures, where in order to ensure the payment/entrustment, PW3 also put his signatures certifying the entrustment, mere non-examination of the Cashier is insufficient to hold that there was no entrustment of the misappropriated money to the accused. Here, PW3 reiterated that the money was handed over to the accused, as directed by him. On scrutinizing the evidence of PW3, the accused had received Rs.2,55,120/- as per Ext.P10(a) to (c), but the accused did not deny the said assertion during cross-examination by denying his signatures identified as that of him by PW3 in Exts.P10(a) to (c) in any manner. When PW1 and PW2 given similar evidence, then also the counsel for the accused not at all denied the evidence given by them to prove the entrustment of the misappropriated sum to him, with reference to Exts.P10(a) to (c). In fact, the evidence of PWs.1 to PW3 regarding entrustment of Rs.2,55,120/- remains unchallenged. Therefore, the evidence of PW1, PW2 and PW3 regarding entrustment to be perceivable alone is sufficient to hold that this much amount was entrusted to the accused.
Apart from that, Exts.P12 and 16 muster rolls would necessarily contain the disbursement/payment of the amount received by the accused as per Exts.P10 and P10(a) to (c). In this connection, in order to show that the amount was not disbursed and for the disbursement of the amount, the accused falsifies Exts.P12 and P16, the prosecution examined PWs. 6 to 9, PW11, PW14 and PW16 to PW23. Among them, PW6 to 9, PW11, 13, 17, 19 and 20, in fact, turned hostile to the prosecution and disowned their previous statements to the effect that they did not receive any amount under the Food Support Programme during the relevant period. But the other beneficiaries, PW12, PW14, PW16 and PW18 had denied their thumb impressions and they had given evidence that they did not receive any amount mentioned in Ext.P12. Similarly, PWs.21 to 23 also denied their signatures in Ext.P16, by which, the accused claimed to have disbursed the amount to them and they also gave candid evidence that they did not receive any amount as noted in Ext.P16. Thus the evidence available would substantiate that the appellant/accused herein got entrustment of Rs.2,55,120/- viz, 63,780/- on 22.08.1996, Rs.63,780/- on 19.09.1996, Rs.1,27,560/- on 30.10.1996 from PW3 and out of the said amount, he had disbursed only Rs.13,080/-and he failed to account for how the remaining amount of Rs.2,42,220/- (On calculation the amount is 242040/-) was misappropriated by the appellant/accused. If so, prosecution evidence in the instant case, as discussed herein, would show that the prosecution succeeded in proving commission of offences punishable under sections 409 and 477A of IPC as well as Section 13(1)(c) r/w 13(2) of the PC Act.
Now coming to the question of sanction under Section 197 of Cr.P.C, as argued by the learned senior counsel for the accused, when it could be seen from records that the public servants acted in their official capacity or purported to be acted in their official capacity, sanction under Section 197 of Cr.P.C is necessary to prosecute them. But in other cases no sanction is necessary. The views expressed by the Apex Court regarding applicability of sanction under Section 197 Cr.PC, are as under:
“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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”
“It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under Section 161 of Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another... 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 of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences.........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.”
“It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal Court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants form frivolous prosecution....”
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. (Emphasis laid by this Court)
The learned senior Counsel further placed reliance on the decision of a constitution bench of this Court in the case of R.S. Nayak v. A.R. Antulay , (1984) 2 SCC 183, wherein certain observations were made with regard to Section 6 of P.C. Act, 1988, as under:
23.Mr. P.P. Khurana, the learned senior Counsel appearing on behalf of some of the Appellants has further placed reliance upon the judgments of this Court in the cases of R. Balakrishna Pillai v. State of Kerala, (1996) 1 SCC 478, Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500, Shankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 and State of M.P. v. Sheetla Sahai, (2009) 8 SCC 617, in support of his submission that the acts constituting the offence were alleged to have been committed by the Appellant in discharge of his official duty and that being the fact, it was not open to the Special Judge court to take cognizance of the offences without obtaining the previous sanction of the Central Government by the Respondent.
24.The learned Additional Solicitor General, on the other hand, appearing on behalf of CBI placed strong reliance on the decision of this Court in the case of Prakash Singh Badal v. Union of India, (2007) 1 SCC 1 to buttress his contention that no sanction was required to be taken in the instant case as the Appellants have entered into a criminal conspiracy, therefore, it cannot be said to be a part of their official duty as the public servants.
50.The offence of cheating Under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.”
“51.In Baijnath v. State of M.P. (1966 (1) SCR 210) the position was succinctly stated as follows:
“….it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted.”
25.—-It becomes clear that for the purpose of obtaining previous sanction from the appropriate government Under Section 197 of Code of Criminal Procedure, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the Respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the Respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government Under Section 197 of Code of Criminal Procedure was required to be taken by the Respondent, before taking cognizance and passing an order issuing summons to the Appellants for their presence.”
While addressing the question of sanction under Section 197 Cr.PC, in Ext.P37, the sanctioning authority on scrutinizing the record observed that “the above mentioned acts on the part of the said Soman constitute offences punishable under Section 13(2) r/w 13(1)(c) of the Prevention of Corruption Act 1988 and Sections 409, 420 468 and 477A of Indian Penal Code.” Accordingly, in the concluding portion, it is stated as “E. Ayyappan the Director of Scheduled Tribe Development do hereby accord sanction required under Section 19(1)(c) of the Prevention of Corruption Act 1988 for the prosecution of the said K.K.Soman for the said offences and any other offences punishable under other provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences by a Court of competent jurisdiction.”
Thus, it appears that, though the words ‘Section 197 Cr.P.C’ is not specifically mentioned in Ext.P37, the same is an exhaustive one and would take in IPC offences as well, for which, cognizance was taken by the learned Special Judge. In such view of the matter, the challenge raised by the learned Senior Counsel for the appellant canvassing absence of sanction under Section 197 of Cr.P.C would not sustain. Thus, on re-appreciation of evidence, this Court is of the view that the Special Judge was right in finding that the accused committed offences punishable under Section 13(1)(c) r/w 13(2) of the PC Act and Sections 409 and 477A of IPC. Therefore, the conviction is confirmed. Regarding the sentence, the same can be modified in the interest of justice.
In the result, Criminal Appeal is allowed in part. Conviction is confirmed. The sentence is modified and accordingly, the accused is sentenced as under:
The appellant/accused shall undergo Simple Imprisonment for 1 year (one year) and to pay fine of ₹.50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for 3 (three) months for the offence punishable u/s. 13 (1) (c) r/w 13 (2) of P.C Act.
The appellant/accused is further sentenced to undergo Simple Imprisonment for a period of 1 year (one year) and to pay fine of ₹.50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for a period of 3 (three) months for the offence punishable u/s 409 IPC.
The appellant/accused is sentenced to undergo Simple Imprisonment for a period of 1 year (one year) for the offence punishable u/s 477A IPC and to pay fine of ₹. 50,000/- (Rupees Fifty Thousand) and in default of payment of fine to undergo Simple Imprisonment for a period of 3 (three) months.
The substantive sentence shall run concurrently and the default sentence shall run separately.
Set off, if any, is also allowed.
The order suspending sentence and granting bail to the accused stands cancelled and the bail bond executed by the accused also stands cancelled. The accused is directed to surrender before the Special Court, forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Special Court, forthwith, without fail, for information and compliance.