K.K.SOMAN, vs STATE OF KERALA,

​ ​ ​ ​ ​ ​ ​
CNR : KLHC010929642018
​ ​ ​ ​ ​ ​ ​ ​
2026:KER:80599
​​
Crl. Appeal No.1473/2018 1


IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ND
MONDAY, THE 2 DAY OF NOVEMBER 2026 / 11TH KARTHIKA, 1948
CRL.A NO. 1473 OF 2018
CRIME NO.06/2000 OF VACB, WAYANAD,
AGAINST THE JUDGMENT DATED 30.11.2018 IN CC NO.48 OF 2016 OF
COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY
APPELLANT/ACCUSED:

K.K.SOMAN, AGED 59 YEARS, S/O.O.T.KUTTAN, KANJIRAMKALAYIL HOUSE,
KAVIYOOR, THIRUVALLA (FORMERLY TRIBAL EXTENSION OFFICER,
SULTHAN BATHERY) (NOW RESIDING AT ANJANA HOUSE,
KAITHACHIRA P.O., MANNARKKAD, PALAKKAD DISTRICT.

BY ADVS. ​
​
SRI.K.RAMAKUMAR (SR.)
​
SRI.S.M.PRASANTH
SHRI.G.RENJITH ​
SMT.ASWINI SANKAR R.S.

RESPONDENT/COMPLAINANT:


1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682031.

​
2 THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU, THALASSERY, PIN- 670101.

OTHER PRESENT:

K.RAMAKUMAR(SR.)

SR.PP ROY THOMAS (MUVATTUPUZHA)

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2026, THE COURT
ON 02.11.2026 DELIVERED THE FOLLOWING:

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A. BADHARUDEEN, J.
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Crl. Appeal No. 1473 of 2018
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Dated this the 2nd day of November, 2026
​ ​ ​ ​ ​ ​ ​ ​ ‘CR’

JUDGMENT


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’).
​ 2.​ 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.
​ 3.​ In this matter (arising out of C.C.No.48/2016), the
prosecution allegation is misappropriation of Rs.2,42,510/- by the

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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

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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.”

​ 4.​ 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

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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).
5.​ 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

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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

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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

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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

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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)
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. The act of the Appellants of transferring the plot in
question in favour of the aforesaid society, allotted in favour of

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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:

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“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....”
25. 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

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Respondent, before taking cognizance and passing an order
issuing summons to the Appellants for their presence.”

6.​ 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

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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

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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

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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

Crl. Appeal No. 1473 of 2018
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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]”

​ 7.​ 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:”

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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.

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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

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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

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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.

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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.”

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​ 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?

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​ ( 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.

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​ 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

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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

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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

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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.
14. ​ 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

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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.
15. ​ 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

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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.
16. 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.”

17. ​ 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

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imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine.”

18. ​ 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.
19. ​ 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.
20. ​ 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

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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).
21. ​ 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.
22. ​ Tracing the ingredients of the offence punishable
under Section 477A of IPC, Section 477A provides as under:

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“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.”

​ 23.​ 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.”

24. ​ The three ingredients to prove the offences are:
(i) That at the relevant point of time, the accused should be a

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clerk or officer or servant or acting in that capacity ;
(ii) 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
(iii) 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.
25.​ 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

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the capacity of a clerk, officer or servant”.
26. 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

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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.
27. 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.
28.​ 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
According to PW3, he had held the post of Tribal
PW1 and PW2.

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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

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written by the Cashier.
29.​ 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

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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.
30.​ 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

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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.
31.​ 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

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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

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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.
—-------

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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.”

32.​ 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

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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. ”
33.​ 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

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and 477A of IPC. Therefore, the conviction is confirmed.
Regarding the sentence, the same can be modified in the
interest of justice.
34.​ In the result, Criminal Appeal is allowed in part.
Conviction is confirmed. The sentence is modified and
accordingly, the accused is sentenced as under:
(i)​ 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.
(ii)​ 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.
(iii)​ 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.
(iv)​ The substantive sentence shall run
concurrently and the default sentence shall run separately.

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(v)​ Set off, if any, is also allowed.

​ 35.​ 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.

Sd/-
A. BADHARUDEEN
JUDGE
Sbna/