RAGHUNATH ANANT GOVILKAR v. STATE OF MAHARASHTRA AND ORS

Citation: [2008] 2 S.C.R. 580

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, D.K. JAIN

Case summary

RAGHUNATH ANANT GOVILKAR v. STATE OF MAHARASHTRA AND ORS.pdf

Judgment text

J [2008] 2 S. C. R. 580 _J. ~ ; RAGHUNATH ANANT GOVILKAR I II. STATE OF MAHARASHTRA AND ORS. (Criminal Appeal No. '279 of 2008) FEBRUARY 8, 2008 (DR. ARIJIT PASAYAT AND D. K. JAIN, JJ. ) __.. 1 Code of Criminal Procedure, 1973: s. 197 - Prosecution of public servant - Sanction for - HELD: Before s. 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 discharge of his official capacity - It is quality of the act which is important and protection of the section is available if the act falls within the scope and range of. official duty ofpublic servant ... :... On facts, offences alleged to have been committed by )t delinquent u/ss 420, 465, 466, 467,468 and 471 /PC cannot ~ be related to any official duty - Penal Code, 1860 - ss. 420, 465, 466,467,468 and 471. s.

197 - Sanction for prosecution ofretired public servant - HELD: expression "was" employed after "is" in the section makes need for sanction applicable even in cases where a retired public servant is sought to be prosecuted. Penal Code, 1860: ~ ·~ SS. 406, 409 and 120-B - HELD: SS. 406 and 409 are cognate offences in which common component is criminal breach of trust - Supreme Court having held that in regard to offence uls 409 rlw 120-B it is no part of duty of public servant to enter into a criminal conspiracy for committing breach of trust, the position will not be different if offence is uls 406 r/w . ,__ 120-B /PC vis-a-vis s. 197 Cr. P. C. - Code of Criminal Procedure, 1973. . -"" \ MAHARASHTRAAND ORS. ~ ·-4'· Words and Phrases: 'Official act', 'Official ·duty' - Meaning of in the context of s. 197 Cr. PC.

An FIR was registered against the appellant with the allegations that he, while working with the Maharashtra Housing and Area Development Authority, made false -4, allotment of premises to various persons, under his • signatures and issued rent receipts so that the said a! lottees could claim that they were in possession of the tenements though, in fact, the said tenements were vacant and were not in possession of MHADA; and thereby committed offences punishable u/ss 420, 465,466A67,468 and 471 IPC, The appellant filed an application before the trial court for his discharge in terms of s. 228 of the Code of Criminal Procedure, 1973 primarily on the grounds that no sanction for his prosecution was obtained and that in >. view of Rule 27 of the Maharashtra Civil Services Al\ {Pension) Rules, 1982, the proceedings could not have been initiated after his retirement.

The trial court rejected the application holding that the complaint was filed before the retirement of the accused, and, therefore, r. 27 of the Pension Rules had no application; and that since the acts committed by the accused did not fall within the ambit of official duty, question of sanction u/s 197 Cr. P. C. did not arise. The High Court also dismissed the petition of the .... accused holding that when cognizance was taken, the accused had ceased to be a public servant. In the instant appeal filed by the accused, it was . contended for the appellant that the acts were done by him while he was in service and the same had link with his 'official duty and, therefore, sanction in terms of s. 197 -\ Cr. P. C. was necessary. Dismissing the appeal, the Court HELD: 1. 1 A court, as envisaged by s. 197 Cr. P. C.

is I -) ·, precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an ,offence alleged to have been committed during-the discharge of his official duty. The mandatory character of the protection afforded to a public servant is brought out by the expression "no court shall take cognizance of such offence except with the previous sanction". Use of the words 'no' and 'shall' make fit abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. [para 11] [590-C-G] Bakhshish Singh Brar vs. Gurmej Kaur 1987(4) SCC 663 - relied on. 1. 2 Before Section 197 Cr. P. C.

can be invoked, it must 0 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 capacity. 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 the section is available if the act falls within the scope and range of his official duty. [para 8] [588-A-C] P. Arulswami v. State of Madras (1967) 1 SCR 201 relied on 1. 3 "Official act" or "official duty" means an act or duty done by an officer in his official capacity. Use of the expression 'official duty' in s. 197 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 the public service and discharge of his duty. The section does not extend its protective cover to every act or ) ,_ MAHARASHTRAAND ORS. • --4-' 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. It has been widened further by extending protection to even those acts or omissions which are done in ~ purported exercise of official duty; that is under the colour ' 8 of office. [para 13-14] [591-G-H; 592-A] Ai 8. Saha v. M. S Kocha 1979 (4) SCC 177 - relied on . l ~ 1. 4 Section 197 Cr. P. C. has to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty.

But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned, so as to advance the objective of the section in favour of the public servant. " Otherwise the entire purpose of affording protection to a { A\ public servant without sanction shall stand frustrated. [para 14] [592-B-E] Matajog Dobey v. H. C. Bhari 1955 (2) SCR 925-relied on 1. 5 The offence alleged 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 connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had 1\ 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. [para 15-17] [592-G-H; 593-A-B] _,; . S. A. Venkataraman v. State 1958 SCR 1040; State of + Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC 339; and Kalicharan Mahapatra v. State of Orissa 1998 (6) SCC 411 - relied on. 2. 1 An accused facing prosecution cannot'claim any 1 ' immunity on the ground of want of sanction, if he ceased r to be a public servant on the date when the court took ~ cognizance of the said offences. But the position is f- _! , different in cases where Section 197 of the Code has application. [para 21] (594·8] 2. 2 In pursuance of the report of the Law Commission the expression "was" came to be employed after the expression "is" in s.

197 to make the need for sanction applicable even in cases where a retired public servant is sought to be prosecuted. The High Court, therefore, was in error in observing that sanction was not necessary because the expression used is "was". However, in the . A instant case, the alleged offences cannot be related to any )>. . official duty. [para 24,26,27] [595-8, D] R. Balakrishna Pillai v. State ofKera/a 1996 (1) SCC 478; State of H. P. v. M. P. Gupta 2004 (2) SCC 349; State of Orissa v. Ganesh Chandra Jew 2004 (8) SCC 40; S. K. Zutshi v. Bimal Debnath 2004 (8) SCC 31; Rakesh Kumar Mishra v. State of Bihar and others 2006 (1) sec 557; and State of Kera/av. V Padmanabhnan Nair 1999 (5) SCC 690 - relied on. >- 3. Sections 406 and 409 of IPC are cognate offences in which the common component is criminal breach of ) trust.

When the offences in which offence under Section 406 is included are committed by a person who is a public tservant (of holding any one of the position listed in the Section) the offence would escalate to Section 409 of the ")' Penal Code. When this Court held that in regard to the offence under Section 409 of IPC read with Section 120-8 it is no part of the duty of the public servant to enter into a " criminal conspiracy for committing breach of trust, it \_ I,, cannot be said that if the offence is under Section 406 read with Section 120-8, IPC it would make all the difference vis-a-vis Section 197 of the Code. [para 30] [597-C-E] Harihar Prasad vs. State of Bihar 1972(3) SCC 89; Srreekantiah Ranatta Munnips! li v. State of Bombay AIR 1955 SC 287; Amrik Singh v. State of Pepsu AIR 1955 SC 309relied on. 4.

Though, the view ofthe High Court about the need for sanction in the case of retired Government servant was erroneous, it rightly recorded the finding that the charged offences were not relatable to any official duty. [para 31] [597-F] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 279 of 2008. ~ From the final Judgment I order dated 21. 7. 2005 of the ~ Hig. h Court of Judicature at Bombay in Crl. W. P. No. 291/2005. B. Y. Kulkarni and V. B. Joshi for the Appellant. Ravindra Keshavrao Adsure and V. N. Raghupathy for the Respondents. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. The challenge in this appeal is to the order passed by the learned Single Judge of the Mumbai High Court dismissing the Criminal Writ Petition filed by the appellant for quashing the proceedings pending before the Addi. Chief Metropolitan Magistrate, 37th Court, Eaplanade. The appellant was the accused No. 1 O in the said case.

The allegation against the Cf appellant was that while working with Maharashthon Housing andArea DevelopmentAuthority (in short 'MHADA') the appellant allotted premises to various persons under his signature, issued rent receipts so that the said persons could claim that they were in possession of the tenements, though in fact, the tenements, J + + in question, were vacant and were not in possession of MHADA. 3. According to the prosecution, the appellant committed offences punishable under Sections 420, 465, 466, 467, 468 and 471 of the Indian Penal Code, 1986 (in short 'IPC'). Before the Trial Court, the appellant filed an application for discharge in terms of Section 228 of the Code of Criminal Procedure, 1973 (in short the 'Cr. P. C. ') primarily on the ground that sanction ~was necessary for his prosecution.

It was also submitted that -" proceedings could not have been initiated after his retirement in view of what has been stated under Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982 (in short 'Pension Rules'). The application was dismissed by the Trial Court. It was noted that the appellant was in Government ser\iice till 31. 8. 1989. The complaint was filed on 17. 7. 1989 which was treated as an FIR and, therefore, Rule 27 of the Pension Rules have no application. As regards the requirement of sanction·in terms of Section 197 Cr. P. C. it was held that acts done by the ~ accused did not fall within the ambit of official dufy and, therefore, ). - Section 197 Cr. P. C. is very clear that if the impugned acts were · done when the accused was in service, sanction in terms of Section 197 Cr. P. C. is necessary. 6. Learned counsel for the State supported the orders impugned. )- 7. The pivotal issue i. e. applicability of Section 197 Cr. P. C. needs careful consideration.

In Bakhshish Singh Brarv. Gurmej Kaur(1987 (4) SCC 663), this Cou. rtwhile emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows: " ..... \ "It is necessary to protect the public servants in th~ -~ discharge of their duties.... In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding cut as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his -\ limit. It is true that Section (sic197) states that no, • cognizance can be taken and even after cognizance having, been taken if facts come to light that the acts complained, of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained.

But at the same time it has to be emphasised that criminal, trials should not be stayed in all cases at the preliminary. stage because that will cause great damage to the evidence. " j. 8. The protection given under Section 197 Cr. P. C. is to ,,. protect responsible public servants against the insti. tution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or 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 it chooses to exercise it, complete control of the prosecution. This protection has certain . . 4, 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 Cr. P. C. 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 capacity. 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 lo and range of the official duties of the public servant concerned. It is the quality ofthe act which is important and the protection of L the 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 Jr. answerable for a charge of dereliction of his official duty: if the )' - (1979 (4) SCC 177) it was held (SCC pp. 184-85, para 17) "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, "It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendere. d illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold . his official position, and then to lodge a ~complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing tbat official acts do not lead to needless or vexatious H. prosecution. It should be left to the Government to determine from that point of view the question Qf the expediency of prosecuting any public servant. " 24. It was in pursuance of this observation that the expression "was" came to be employed after the expression "is" to make the need for sanction applicable even in cases 8 where a retired public servant is sought to be prosecuted. 25. The above position was highlighted in R.

Ba/akrishna Pillai v. State of Kera/a (1996 (1) SCC 478), State of H. P. v. M. P Gupta (2004 (2) SCC 349), State of Orissa v. Ganesh Chandra Jew (2004 (8) SCC 40), S. K. Zutshi v. Bimal Debnath (2004 (8) SCC 31) and Rakesh Kumar Mishra v. State of Bihar and others (2006 (1) sec 557). 26. The High Court, therefore, was in error in observing that sanction was not necessary because the expression used is "was". D. 27. But the question is really of academic nature because the alleged offences cannot be related to any official duty. 28. The State of Kera/a v. V Padmanabhnan Nair (1999 (5) SCC 690) it was observed as follows: "5. In S. A. Venkataraman v. State (AIR 1958 SC 107) and in C. R. Bansi v.

State of Maharashtra (1970 (3) SCC 537) this Court has held that: "There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a Court could take a cognizance of the offences mentioned therein the case of person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had at the time the offence was committed. " 29. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. . " ,.. ,. ~ This Court has stated the correct legal position in. Srreekantiah + Ranatta Munnipslli v. State of Bombay (AIR 1955 SC 287) and also Amrik Singh v.

State of Pepsu (AIR 1955 SC 309) that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (1972 3 SCC 89) as j. _ .. follows: "66. The next ·point was with regard to consent or sanction. There is no doubt that in respect of B. P. Sinha consent was properly given by the Deputy Commissioner. So consent was also given in respect of N. K. Banerjee and Harihar Prasad by the Chief Secretary. This is not a case of sanction or consent under Section 196-A of the Code of Criminal Procedure. On the question of the applicability of Section 197 of the Code of Criminal Procedure, the . A principle laid down in two cases, namely, Shteekantiah )-- Ramayya Munipalli v. State of Bombay and Amrik Singh v.

State of Pepsu was as follows: "It is not every offence committed by a public servant that requires sanction for prosecution under Section 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 a~t ·F complained of is directly concerned with his official )r duties so that, if questioned, it could be claimed to t have been done by virtue of the office, then sanction would be necessary. " The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the . t offence of criminal conspiracy punishable under Section '"" 120-B, read with Section 409 of ~he Indian Penal Code is concerned and also Section 5(2) of the Prevention of ,. ~ 4 Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure.

To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the 8 Code of Criminal Procedure is, therefore, no bar. " -4 30. Learned Single Judge of the High Court declined to J, follow the aforesaid legal position in the present case on the sole premise that the offence under Section 406 of IPC has also been fastened against the accused besides Section 409 of IPC. We are unable to discern the rationale in the distinguishment. Section 406 and 409 of IPC are cognate " offences in which the common component is criminal breach of trust. When the offences, in which offence under Section 406 is included, are committed by a person who is a public servant (of holding any one of the position listed in the Section) the offence · ... would escalate to Section 409 of the Penal Code.

When this -( Court held that in regard to the offence under Section 409 of IPC read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 read with Section 120-8, IPC it would make all the difference. vis-a-vis Section 197 of the Code. 31. Though, we have held that view of the High Court about the need for sanction in the case of retired Government servant ... was erroneous, in view of the finding that the charged offences are not relatable to any official duty, the appeal fails and deserves to be dismissed which we direct. R. P. Appeal dismissed. '