B. SAHA AND ORS. v. M. S. KOCHAR (2)

Citation: [1980] 1 S.C.R. 111

Court: Supreme Court of India

Bench: R.S. SARKARIA, P.N. SHINGAL, O. CHINNAPPA REDDY

Case summary

We have no quarrel with the proposition that the question of sariction under Section 197, Cr. The Magistrate accepted this objection and held that in the absence of sanction for the prosecution of the present appellants, he had nci jurisdiction to take cognizance of the...

Judgment text

B. SAHA AND ORS. v. M. S. KOCHAR • July 27, 1979 J [R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ. ] Criminal Procedure Code 1898, Sec. 197-Scope of. The act complained of is dishonest misappropriation or conversion of goods by the appellants wl1ich they had setlzed and as such were holding in trust to be dealt with in accordance with law. This gave a bona fide apprehension to the fC! POndent that the goods have been criminally mis-appropriated by the appellants. The S. D'. M. conducted a preliminary enquiry and found prima facie case under S. 120B/409 IPC against the appellants. The S. D. M. summoned the appellr:tnts vihO appeared before him and prayed for their in1mediate discharge, which was accepted on the ground that he bad no jurisdiction and he discharged the appellants. A . revision petition before the Addl.

Sessions Judge was dismissed on the ground that since the shortage of the goods was discovered at the time when they were produced before the Customs House, there was absolutely nothing to show that the shorta-ge, if any, was due to the act of the appellants. The respondent went in further revision to the High Court which v. •as allo.. ved on the ground that no sanction was required for the prosecution of the accused~appellants because they were certainly not acting in the discharge of their official duties, when they misappropriated these goods. It wa; argued on behalf of the appellants that- (0 lt had been falsely alleged in the complaint that ·when the S. D. M. inspected the goods and noticed the condition thereof, it was found that the Eeals of the four boxes were broken v"hilc the ren1ainiriJi three packa-ges were completely empty but sealed; that the inventory itself, prepared by the S. D. M.

falsified the prosecution allegation; (ii) That it was not alleged in the complaint with particularly as to what goods had disappeared or were removed, nor that the disappearance of some of the goods, if a-ny, occurred after their seizure and before their deposit in the Customs House by the appellant; (iii) That even if for the sake of argument it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also sanction for prosecution u/s 197 Cr. P. C. ,Vas absolutCly necessary because, the seizure and removal being integrally connected with each other, the all~ed act constituting the offence of criminal n1is·appropriation/criminal breach of trust could but reasonably be vie\vcd as an act which includes dereliction of duty-done or purporting to be done in the»discharge of their official duty by the appellants; (iv) That section 197 Cr. P. C.

cannot he construed too narrowly, in the sense that since the commission of offence is never a part of the official duty of a public servant, an act constituting an offence can never be said to have been done or purportedly done in the discharge of official duty, as such a narrow construction, will render the section entirely otiose. Dismissing the appeal, HEW : The question of sMJ. ction u/s 197 Crin1inal ProceJ ure Co of ollicial duty or under colour of office, cannot be answered hypo- ' . I thetically, and depends on the facts of each ca&o, one broad test for ; this pnrpose, first deduced by Varadachariar J. of the Federal Conrt • in Hori Ram v. Emperor, (') is generally applied with advantage. .... After referring with approval to those observations of Varadachariar J. , Lord Simonds in H. H. B. Gill v. The King. (') tersely reiterated that the "test may well be whether the public servant, if challenged, can l'casonably claim, that what he does, he does in virtue of his office.

" Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J. , restated the same principle, thus : " ...... in the matter of grant of sanction under Section 197, the offence all•=ged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty ...... there must be a reasonable con. ~ection between the act and the discharge of official duty; the act must bear such relat;on to the duty that the accused could kiy a reasonable ciaim, but not a pretended or fanciful claim, that he did it in the cou. rse of the performance of his duty". (Emphasis supplied) Let us now apply this broad test to the facts of the case as alleged cmd songht to be proved by the complainant. The allegation against the appellants is about the commissio'n of offences under Sections 409/120B, Indian Penal Code.

To be more precise, the act complained of is dishonest misappropriation or conversion of the goods by the appellants, which they had seized and I as such, were holding in trust to be dealt with in accordance with law. There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge "f •• of their official duty. But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under S~ction 409, Indian Penal Code. Could it be said, that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants (l) [1939] F. C. R. 159. (2) A. LR. 1948 P. C. 128. 9 -475SCil79 ·.

: that they could genuinely claim that they committed it in the course , of the performance of their official duty ? In the facts of the instant case, the answer cannot but be in the negatiw. There is nothing in the nature or quality of the act complained of which attaches to or " partakes of the official character of the appellants who alleg~dly did .. ~ it. Nor cou:d the alleged act of misappropriatio'n or conversion, be reasonably said to be imbued with the colour of the office hdd by the • appellants. ,,"'-. "' As pointed out by Varadachariar J. in Hori Ram (supra), generally, in a case under Section 409, Indian Penal Code, "the official capacity is material only in connection with the 'entrustment' and does 'not necessarily enter into the later act of misappropriation or conversion, which is the act complained of. " .. This, however, should not be understood as an invariable proposi- ·-tion of law. The question, as already explained, depends on the facts of each case.

Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversio'n complained of is inseparably intertwined with the performance of the official duty of the accused and thereforn, sanction under Section 197(1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Sectio'n 409, Indian Penal Code was necessary. Shreekantiah Rammayya (supra) was a case of that kind. The act complarned of against the second accused in that case was, dishonest disposal of the goods. The peculiarity of the act was that from its very nature, in the circumstances of that case, it could not have b~en done lawfully or otherwise by the accused save by an act done or purporti'ng to be done in an official capacity. In other words, the very charge, was the dishonest doing of an official act by the accused. Whether the act was dishonest or lawful, it remained an official act becaus.

~ the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. It was in view of these special facts of the case, it was held that the offence under Section 409, Indian Penal Code was committed T or purported to be committed by the accused in the discharge of his • official duty, and, as such, sanction under Section 197(1) Cr. P. C. was a prerequisite for his pros·~cution. The facts of the case before ns are entirely different. The ratio of Shreekantiah Rammayya has therefore, no application to ·the facts of the case b~fore us. In Amrik Singh v. The State of Pepsu, ( ) it was hid down that whether sanction is necessary to prosecute a public servant on a charge (1) (19551 I S. C. R. 1302. of criminal misappropriation, will cfopend on whether the acts complained of hinge on his duties as a public servant. If they do, then ~anction is requisite.

But if they are unconnected with such duties, then no sanction is necessary. Amrik Singh's case also stands on its own facts, which w"re materially different from those of the present case. The correctness of that decision was doubted in Baijnath v. Staff of Madhya Pradesh (supra), and its authority appears to have bee'n badly shaken. In any _case, its ratio must be confined to its own peculiar facts. Th"re are several decisions of this Court, such as, Om Parkash Gupta v. State of Uttar Pradesh,(') Baijnath v. State of Madhya 2 Pradesh (supra), Marihar Prasad v. State of Bihar,( ) wherein it has been held that sanction under Section 197, Criminal Procedure Code for prosecution for an offence under Section 409, Indian Penal Code . _, was not necessary. In Om Parkash Gupta's ease (ibid) it was held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant.

Since this rule is not absolute, the question being depmdent on the facts of each case, we do not think it necessary to burden this judgment with a survey of all those cases. In the light of all that has been said above, we are of opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of t! J," appellants for an offence under Sections 409/120-B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public ~ervants. At the moot, the official status of the appellants furnished them with a'n opportunity or occasion to commit the alleged criminal act. In the result, the appeal fails and is dismissed. '• N. K. A. Appeal dismissed. (1) [1957] S. C. R. 423.