Full Judgment Text
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CASE NO.:
Appeal (crl.) 1118 of 2000
PETITIONER:
P K PRADHAN
Vs.
RESPONDENT:
THE STATE OF SIKKIM REPRESENTED BY THE
DATE OF JUDGMENT: 24/07/2001
BENCH:
G.B. PATTANAIK, S.N. PHUKAN & B.N. AGRAWAL
JUDGMENT:
B.N.AGRAWAL, J.
In this appeal by Special Leave, order passed by Sikkim High Court,
in Criminal Revision Application dismissing the same after holding that no
sanction under Section 197 of the Code of Criminal Procedure, 1974
(hereinafter referred to as the Code) is required for prosecution of the
appellant and thereby upholding order passed by the Special Judge
refusing to drop the prosecution in the absence of sanction under Section
197 of the Code, has been impugned.
A First Information Report was lodged for prosecution of Shri Nar
Bahadur Bhandari, the then Chief Minister of Sikkim, and the appellant
who was the then Secretary of Rural Development Department,
Government of Sikkim, besides certain contractors under Sections 120-B
of the Indian Penal Code read with Section 5(2) read with Section 5(1)(d)
of the Prevention of Corruption Act, 1947 (hereinafter referred to as the
1947 Act) which correspond to Section 13(2) read with Section 13(1)(d)
of the Prevention of Corruption Act, 1988 (hereinafter referred to as the
1988 Act) and the prosecution case, in short, was that during the year
1983-84, the State Cabinet of Sikkim decided to implement 36 Rural Water
Supply Schemes in the State of Sikkim under minimum needs programme
for a total cost of Rs. 1,62,31,630/- and while approving the above
proposal the Cabinet specifically decided that the works worth more than
Rs. 1,00,000/- shall be put to open tender while works below Rs.
1,00,000/- shall be executed through Panchayat nominees. The approval
of the State Cabinet was communicated to the Rural Development
Department for necessary follow up action for implementation of these
schemes. In order to implement 19 of the schemes, the Department
issued tender notice on 19-12-1983 inviting sealed tenders from enlisted
contractors having resources and experience in such government works.
In response to this notice various tenders were received by the
Department and the same were opened on 18th January, 1984 by a tender
committee. Necessary action for acceptance/rejection of tender then
followed in respective files. It was alleged that when the matter was thus
being processed, Shri Nar Bahadur Bhandari, the then Chief Minister of
Sikkim, Shri P.K.Pradhan, the then Secretary, Rural Development
Department, Government of Sikkim who is the appellant in this appeal
along with fifteen contractors, named in the First Information Report,
entered into a criminal conspiracy with the object of securing contract
works in favour of the said contractors by corrupt or illegal means or by
otherwise abusing the position of the then Chief Minister and the appellant
as public servant and got the works awarded in favour of contractors
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aforesaid at low rates thereby causing pecuniary advantage and
corresponding loss to the State of Sikkim, by various commissions and
omissions.
After registering the case, the matter was duly investigated and
charge sheet was submitted against the appellant and the aforesaid
accused who was the then Chief Minister of Sikkim under Section 5(2)
read with Section 5(1)(d) of the 1947 Act corresponding to Section 13(2)
read with Section 13(1)(d) of the 1988 Act. Charge sheet was also
submitted against the aforesaid two official accused persons besides
fifteen contractors referred to above for their prosecution under Section
120-B of the Indian Penal Code read with Section 5(2) read with Section
5(1)(d) of the 1947 Act corresponding to Section 13(2) read with Section
13(1)(d) of the 1988 Act. It may be stated that before cognizance was
taken upon the charge sheet, the then Chief Minister Shri Nar Bahadur
Bhandari ceased to continue as such and the appellant ceased to be
public servant. By order dated 14th September, 1994, the Special Judge
took cognizance and summoned all of the aforesaid accused persons
including the appellant. On behalf of the appellant, who was Secretary,
Department of Rural Development, Government of Sikkim at the time of
commission of the alleged offence, a preliminary objection was raised
before the Special Judge to the effect that his prosecution under Section
120-B of the Indian Penal Code read with Sections 5(2) and 5(1)(d) of the
1947 Act was not warranted as he being a public servant at the relevant
time, sanction was required under Section 197 of the Code and the same
having not been obtained, the prosecution for these offences was not fit
to continue. Similar objection was taken on behalf of another accused-Shri
Nar Bahadur Bhandari, the then Chief Minister of Sikkim. The Special
Judge by order dated 17th November, 1998 rejected the preliminary
objection and held that no sanction was required. Challenging the
aforesaid order, the appellant and the aforesaid Shri Nar Bahadur
Bhandari moved Sikkim High Court by filing separate revision applications
which having been dismissed by the impugned order holding that no
sanction under Section 197 of the Code was required, the present appeal
by Special Leave.
Shri L.Nageswara Rao, learned Senior Counsel appearing on behalf
of the appellant, submitted that act of the appellant complained of had
reasonable connection with the discharge of official duty and both were
so inter-woven that one could not be separated from the other, as such for
prosecuting the appellant, sanction was required under Section 197 of the
Code and the High Court was not justified in holding otherwise. Learned
Counsel, however, did not challenge continuance of the prosecution of the
appellant under Section 5(2) read with Section 5(1)(d) of the 1947 Act
which corresponds to Section 13(2) read with Section 13(1)(d) of the 1988
Act as no sanction for prosecution under Section 6 of the 1947 Act and
Section 19 of the 1988 Act was required in view of the fact that before the
date of taking cognizance, the appellant ceased to be public servant
inasmuch as under the aforesaid sections, sanction is required only if, on
the date of cognizance, accused was continuing to be public servant and
not otherwise. On the other hand, Shri P.P.Malhotra, learned Senior
Counsel appearing on behalf of the Central Bureau of Investigation and
Shri A.Mariarputham, learned counsel appearing on behalf of the State of
Sikkim, submitted that acts of the accused complained of, had absolutely
no connection with the discharge of official duty inasmuch as commission
of offence of conspiracy can never be treated to be in discharge of official
duty, therefore, no sanction for prosecution under Section 197 of the Code
was at all required. In view of the rival contentions, the only question that
arises is as to whether sanction for prosecution of the appellant was
required under Section 197 of the Code for offences punishable under
Section 120-B of the Indian Penal Code and with Sections 5(2 ) and
5(1)(d) of 1947 Act. .
The legislative mandate engrafted in sub section (1) of Section 197
debarring a court from taking cognizance of an offence except with the
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previous sanction of the Government concerned in a case where the acts
complained of are alleged to have been committed by a public servant in
discharge of his official duty or purporting to be in the discharge of his
official duty and such public servant is not removable from office save by
or with the sanction of the Government touches the jurisdiction of the court
itself. It is a prohibition imposed by the statute from taking cognizance.
Different tests have been laid down in decided cases to ascertain the
scope and 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. 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 for determination 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 a court has to 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 official duty, though, possibly in excess
of the needs and requirements of situation.
In the case of Hori Ram Singh v. The Crown, 1939 Federal Court
Reports 159, question was considered as to whether the protection under
Section 197 of the Code can be confined only to such acts of the public
servant which are 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. In that case, while laying down the law, Sulaiman, J., observed thus
at page 178:-
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.
It was further observed thus at page 179:-
Of course, if the case as put forward fails or the defence
establishes that the act purported to be done in execution of
duty, the proceedings will have to be dropped and the
complaint dismissed on that ground.
The view taken by Sulaiman, J. has been approved by the Privy
Council in H.H.B.Gill and another v. The King, AIR 1948 Privy Council
128, where the Court laid down the law at page 133 which runs thus:-
A public servant can only be said to act or to purport to act in
the discharge of his official duty, if his act is such as to lie
within the scope of his official duty. Thus a Judge neither acts
nor purports to act as a Judge in receiving a bribe, though the
Judgment which he delivers may be such an act : nor does a
Government medical officer act or purport to act as a public
servant in picking the pocket of a patient whom he is
examining, though the examination itself may be such an act.
The test may well be whether the public servant, if challenged,
can reasonably claim that, what he does, he does in virtue of
his office.
[Emphasis added]
In the case of Shreekantiah Ramayya Munipalli v. The State of
Bombay, 1955(1) SCR 1177, the view taken by the Privy Council in the
case of Hori Ram Singh (supra) had been approved and this Court
observed that Section 197 of the Code should not be construed in such a
narrow way so that the same can never be applied. In the said case,
Vivian Bose, J. speaking for the Court laid down thus at page 1186 :-
Now it is obvious that if section 197 of the Code of Criminal
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Procedure is construed too narrowly it can never be applied,
for of course it is no part of an officials 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. The section has content and its language must
be given meaning.
[Emphasis added]
In the case of Amrik Singh v. The State of Pepsu, 1955(1) SCR
1302, upon a detailed discussion, this Court was of the view that if the
discharge of official duty and the act of the accused complained of are
inseparable, sanction under Section 197 of the Code would be necessary.
Venkatarama Ayyar, J., speaking for the Court observed at page 1307-08
which runs thus:-
If the acts complained of are so integrally connected with the
duties attaching to the office as to be inseparable from them,
then sanction under Section 197(1) would be necessary; but if
there was no necessary connection between them and the
performance of those duties, the official status furnishing only
the occasion or opportunity for the acts, then no sanction
would be required.
[Emphasis added]
In the case of Matajog Dobey v. H.C.Bhari, 1955(2) SCR 925, a
cONSTITUTION bENCH OF THIS cOURT CLEARLY LAID DOWN THat where a power is
conferred or a duty is imposed by a statute or otherwise and there is
nothing said expressly inhibiting the exercise of the power or the
performance of the duty by any limitations or restrictions, it is reasonable to
hold that it carries with it the power of doing all such acts or employing
such means as are reasonably necessary for such execution because it is
a rule that when the law commands a thing to be done, it authorises the
performance of whatever may be necessary for executing its command.
The Court was considering in the said case the allegation that the official
authorised in pursuance of a warrant issued by the Income Tax
Investigation Commission in connection with certain pending proceedings
before it, forcibly broke open the entrance door and when some resistance
was put, the said officer not only entered forcibly but tied the person
offering resistance with a rope and assaulted him causing injuries and for
such an act, a complaint had been filed against the public officers
concerned. This Court, however, held in that case that such a complaint
cannot be entertained without sanction of the competent authority as
provided under Section 197 of the Code. The Court had observed that
before arriving at a conclusion whether the provisions of Section 197 of
the Code will apply, the court must conclude that there is a reasonable
connection between the act complained of 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.
In the case of Baijnath Gupta and others v. The State of Madhya
Pradesh, 1966(1) SCR 210, it has been observed that in relation to
charge under Sections 477-A/109 of the Indian Penal Code, sanction is
necessary under Section 197 of the Code as the same was committed
within the scope of official duties though may be in dereliction of them.
In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan
and others, (1998) 1 SCC 205, relying upon Matajog Dobey case (supra)
and bearing in mind the legislative mandate engrafted in sub-section (1) of
Section 197 debarring a court from taking cognizance of an offence except
with previous sanction of the Government concerned, this Court has laid
down that the said provision is a prohibition imposed by the statute from
taking cognizance and, as such, exercising jurisdiction of the court in the
matter of taking cognizance and, therefore, a court will not be justified in
taking cognizance of the offence without such sanction on a finding that
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the acts complained of are in excess of the discharge of the official duty of
the government servant concerned.
In the case of Abdul Wahab Ansari v. State of Bihar and another,
(2000) 8 SCC 500, while considering the scope of Section 197 of the
Code, this Court observed at page 507 which runs thus:-
We have no hesitation to come to the conclusion that the
appellant had been directed by the Sub-Divisional Magistrate
to be present with police force and remove the encroachment
in question and in course of discharge of his duty to control
the mob, when he had directed for opening of fire, it must be
held that the order of opening of fire was in exercise of the
power conferred upon him and the duty imposed upon him
under the orders of the Magistrate and in that view of the
matter the provisions of Section 197(1) applies to the facts of
the present case.
In the case of K.Satwant Singh v. The State of Punjab, 1960(2)
SCR 89, a Constitution Bench of this Court observed that some offences
cannot by their vary nature be regarded as having been committed by
public servant while acting or purporting to act in the discharge of their
official duty. For instance, acceptance of bribe, an offence punishable
under Section 161 of the Indian Penal Code is one of them and offence of
cheating and abetment thereof is another. Likewise, another Constitution
Bench in the case of Om Prakash Gupta v. State of U.P., 1957 SCR 423,
observed that a public servant committing criminal breach of trust does not
normally act in his public capacity as such no sanction is required for such
an act.
Thus, from a conspectus of the aforesaid decisions, it will be clear
that for claiming protection under Section 197 of the Code, it has to be
shown by the accused that there is reasonable connection between the act
complained of and the discharge of official duty. An official act can be
performed in the discharge of official duty as well as in dereliction of it. For
invoking protection under Section 197 of the Code, the acts of the accused
complained of must be such that the same cannot be separated from the
discharge of official duty, but if there was no reasonable connection
between them and the performance of those duties, the official status
furnishes only the occasion or opportunity for the acts, then no sanction
would be required. If the case as put forward by the prosecution fails or
the defence establishes that the act purported to be done is in discharge of
duty, the proceedings will have to be dropped. It is well settled that
question of sanction under Section 197 of the Code can be raised any time
after the cognizance; may be immediately after cognizance or framing of
charge or even at the time of conclusion of trial and after conviction as
well. But there may be certain cases where it may not be possible to
decide the question effectively without giving opportunity to the defence to
establish that what he did was in discharge of official duty. In order to
come to the conclusion whether claim of the accused, that the act that he
did was in course of the performance of his duty was reasonable one
and neither pretended nor fanciful, can be examined during the course of
trial by giving opportunity to the defence to establish it. In such an
eventuality, the question of sanction should be left open to be decided in
the main judgment which may be delivered upon conclusion of the trial.
In the present case, the accused is claiming that in awarding
contract in his capacity as Secretary, Department of Rural Development,
Government of Sikkim, he did not abuse his position as a public servant
and works were awarded in favour of the contractor at a rate permissible
under law and not low rates. These facts are required to be established
which can be done at the trial. Therefore, it is not possible to grant any
relief to the appellant at this stage. However, we may observe that during
the course of trial, the court below shall examine this question afresh and
deal with the same in the main judgment in the light of law laid down in this
case without being prejudiced by any observation in the impugned orders.
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For the foregoing reasons, the appeal fails and is accordingly
dismissed.
J.
[ G.B.PATTANAIK ]
J.
[ S.N.PHUKAN ]
J.
[ B.N.AGRAWAL ]
NEW DELHI,
JULY 24, 2001.
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