Full Judgment Text
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PETITIONER:
B. SAHA AND ORS.
Vs.
RESPONDENT:
M. S. KOCHAR
DATE OF JUDGMENT27/07/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
SHINGAL, P.N.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1841 1980 SCR (1) 111
1979 SCC (4) 177
CITATOR INFO :
R 1981 SC 806 (4,6)
R 1983 SC 610 (9)
RF 1991 SC1260 (66)
ACT:
Criminal Procedure Code 1898, Sec. 197-Scope of.
HEADNOTE:
The act complained of is dishonest misappropriation or
conversion of goods by the appellants which they had seized
and as such were holding in trust to be dealt with in
accordance with law. This gave a bona fide apprehension to
the respondent that the goods have been criminally mis-
appropriated by the appellants. The S.D.M. conducted a
preliminary enquiry and found a prima facie case under
S. 120B/409 IPC against the appellants. The S.D.M. summoned
the appellants who appeared before him and prayed for their
immediate discharge, which was accepted on the ground that
he had no jurisdiction and he discharged the appellants. A
revision petition before the Addl. Sessions Judge was
dismissed on the ground that since the shortage of the goods
was discovered at the time when they were produced before
the Customs House, there was absolutely nothing to show that
the shortage, if any, was due to the act of the appellants.
The respondent went in further revision to the High Court
which was allowed on the ground that no sanction was
required for the prosecution of the accused-appellants
because they were certainly not acting in the discharge of
their official duties, when they misappropriated these
goods.
It was argued on behalf of the appellants that-
(i) It had been falsely alleged in the complaint
that when the S.D.M. inspected the goods and
noticed the condition thereof, it was found
that the seals of the four boxes were broken
while the remaining three packages were
completely empty but sealed; that the
inventory itself, prepared by the S.D.M.
falsified the prosecution allegation;
(ii) That it was not alleged in the complaint with
particularly as to what goods had disappeared
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or were removed, nor that the disappearance
of some of the goods, if any, occurred after
their seizure and before their deposit in the
Customs House by the appellant;
(iii) That even if for the sake of argument it is
assumed that some of the goods were removed
and set apart by the appellants after
seizure, then also sanction for prosecution
u/s 197 Cr.P.C. was absolutely necessary
because, the seizure and removal being
integrally connected with each other, the
alleged act constituting the offence of
criminal mis-appropriation/criminal breach of
trust could but reasonably be viewed as an
act which includes dereliction of duty-done
or purporting to be done in the discharge of
their official duty by the appellants;
(iv) That section 197 Cr.P.C. cannot be construed
too narrowly, in the sense that since the
commission of offence is never a part of the
official duty of a public servant, an act
constituting an offence can
112
never be said to have been done or
purportedly done in the discharge of official
duty, as such a narrow construction, will
render the section entirely otiose.
Dismissing the appeal,
^
HELD: The question of sanction u/s 197 Criminal
Procedure Code can be raised and considered at any stage of
the proceedings. [116H, 117A]
The words "Any offence alleged to have been committed
by him while acting or purporting to act in the discharge of
his official duty" in section 197(1) of the Code, are
capable of a narrow as well as 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 it is not every offence committed by a public servant
while engaged in the performance of his official duty, which
is entitled to the protection of sec. 197(1), an act
constituting an offence directly and reasonably connected
with an official duty will require sanction for prosecution
under the said provision. 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 my him. [118D-H,
119A]
In the instant case, there was some foundation for the
allegation that the goods in question had been
misappropriated by the appellants sometime after their
seizure and before their deposit in the Customs House. There
can be no dispute that the seizure of the goods by the
appellants and their being thus entrusted with the goods or
having dominion over them, was an committed by them while
acting in the discharge of their official duty. But the act
complained of is subsequent dishonest, misappropriation or
conversion of those goods by the appellants, which is the
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second necessary element of the offence of criminal breach
of trust under section 409, Indian Penal Code. It could not
be said that the act of dishonest, misappropriation or
conversion complained of bore such an integral relation to
the duty of the appellants that they could genuinely claim
that they committed it in the course of the performance of
their official duty.[119E-H-120A]
There is nothing in the nature or quality of the act
complained of which attaches to or partakes of the official
character of the appellants who allegedly did it. Nor could
the alleged act of misappropriation or conversion be
reasonably said to be imbued with the colour of the office
held by the appellants. Therefore, on the facts of the
present case, the alleged act of criminal misappropriation
complained of was not committed by them while they were
acting or purporting to act in the discharge of their
official duty, the commission of the offence having no
direct connection or inseparable link with their duties as
public servant. At the most, the official status of the
appellants furnished them with an opportunity or occasion to
commit the alleged criminal act. Sanction of the appropriate
Government was therefore not necessary for the protection of
the appellants for an offence under section 409/120B Indian
Penal Code. [120A-B, 121D-F]
113
Om Parkash v. State of Uttar Pradesh, 1957, S.C.R. 423,
Amrik Singh v. The State of pepsu, [1955] 1 SCR 1302,
Shreekantiah Rammayya Munipalli and Ors. v. State of Bombay,
A.I.R. 1955, S.C.R. 187; distinguished.
Baijnath v. State of Madhya Pradesh, A.I.R. 1966, S.C.
220 at page 222 and Harihar v. State of Bihar, [1972] 3
S.C.R. 89; referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 21
of 1973.
Appeal by Special Leave from the Judgment and Order
dated 3-5-1972 of the Delhi High Court in Criminal Revision
No. 450/69.
D. Mukherjee, S. K. Dholakia and R. C. Bhatia for the
Appellants.
Respondent in person.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave directed
against a judgment, dated May 3, 1962, of the Delhi High
Court, arises out of these circumstances :
M. S. Kochar, the respondent herein, filed a complaint
in the Court of the Sub-Divisional Magistrate, Delhi,
alleging that the appellants herein, who are officers of the
Customs Department, had committed offences under Sections
120B/166/409, Indian Penal Code. It was stated in the
complaint as follows :
The complainant was the sole representative in India of
various manufacturing concerns in West Germany, and was
carrying on business under the style of "House of German
Machinery". He imported certain items of machinery from the
German firms for displaying them in the International
Industries Fair held in New Delhi in November, 1961. In
spite of the fact that he had obtained a valid Customs
Clearance Permit for the import of these items of machinery,
the Customs Authorities prevented him from clearing the
goods from the Railway Station. Ultimately, the complainant
was able to clear the goods by obtaining the necessary
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permission from the Government. He was allowed to retain the
imported goods with him till the first of June, 1962. The
goods were to be re-exported from India, thereafter. The
respondent applied for extension of the period, but his
request was declined.
On June 16, 1962, the accused (appellants) raided the
premises of the complainant at 30, Pusa Road, New Delhi, and
seized some of those imported goods which were meant for
display in the International Industries Fair. The appellants
also seized certain other goods kept by
114
the complainant at the site of the Fair, itself. Inventories
of the goods were prepared by the appellants at the time of
their seizure. The goods were then packed in boxes and
sealed by the appellants with their own seals which were
signed by the complainant as well as the appellants. One
copy of the inventories, duly signed by the appellants and
the complainant, also was handed over to him.
On November 20, 1963, the complainant made an
application before the Sub-Divisional Magistrate, praying
that the goods seized by the appellants be handed over to
him on Superdari as they were likely to deteriorate unless
kept safely under proper conditions. The Sub-Divisional
Magistrate, on January 22, 1964, made an order directing
that all the goods seized by the appellants be handed over
to the complainant on Superdari.
The Customs, however, felt aggrieved by this order of
the Magistrate and went in revision against it before the
Additional Sessions Judge, Delhi, who, on February 7, 1964,
passed an order staying delivery of possession.
Subsequently, by order dated April 3, 1965, the Additional
Sessions Judge dismissed the revision-petition and vacated
the stay order. In spite of the order of the Magistrate,
confirmed by the Additional Sessions Judge, the Customs
handed over to the complainant on Superdari only a part of
the goods seized, and in respect of the remaining goods, the
Customs Authorities went in further revision to the High
Court and obtained an interim stay of the order of the
Additional Sessions Judge.
Subsequently, on August 22, 1966, the High Court made
an order directing that all the goods which had been seized
by the Customs Authorities from the complainant, including
those which had been returned to him on Superdari, should be
produced before the Sub-Divisional Magistrate, who was
seized of a case under Section 5 of the Import and Export
(Control) Act and Section 166(81) of the Sea Customs Act,
regarding the goods, pending against the complainant.
Accordingly, Shri H. L. Sikka, Sub-Divisional Magistrate,
prepared two inventories of these goods on November 16, 1966
and thereafter. The boxes were opened before Shri Sikka, who
got inventories of the goods found therein prepared, and
after noting the condition of those goods, he got the same
repacked and sealed in proper boxes in the presence of the
parties with a seal of the Court. Before resealing, the
Magistrate noted down the condition of the four packages
which were produced before him by the appellants and which
remained in their possession since the seizure (16-6-1962).
"It was then found by the Magistrate that the seals of these
boxes were tampered. One
115
wooden box was broken and the seal on it was also broken;
while the remaining three packages were completely empty but
sealed".
The goods of Consignment No. 1 of M/s. Gebr. Ruhstrat,
concerning the complaint filed by the Assistant Collector of
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Customs under Section 5 of the Import & Export (Control)
Act, and Section 117(81) of the Sea Customs Act, which were
also seized by appellant No. 1, who had obtained their
delivery from the Railway Station, were not produced before
Shri H. L. Sikka, Magistrate, along with the other goods
when the inventories were prepared. This gives "a bona fide
apprehension to the complainant that the said goods have
been criminally misappropriated by the accused."
"The accused by their act in illegally tampering and
breaking the seals of the consignment seized by them and
removing some of these goods and further abusing their
positions and seizing some of the personal articles of the
complainant under the colour of search warrant issued by the
S.D.M. Karol Bagh and illegally holding those goods of the
complainant uptil...have committed offences under Sections
120B/166/409 IPC."
The Sub-Divisional Magistrate before whom the complaint
had been filed, examined the complainant under Section 200
and further held a preliminary enquiry under Section 202,
Cr.P.C., in the course of which, he examined Shri H. L.
Sikka, Magistrate, also. After considering the statements
recorded in the preliminary enquiry, and the documents
produced by the complainant, the Magistrate found a prima
facie case under Sections 120B/409, I.P.C. against the three
appellants. He, therefore, directed that the accused
(appellants herein) be summoned.
On receiving the summons, the appellants appeared
before the Magistrate and made an application praying for
their immediate discharge, inter alia, on the ground that
the Magistrate had no jurisdiction to take cognizance of the
complaint in the absence of sanction under Section 197 of
the Code of Criminal Procedure, 1898, and under Section 155
of the Customs Act, 1962, for prosecution of the appellants.
The Magistrate accepted this objection and held that in
the absence of sanction for the prosecution of the present
appellants, he had no jurisdiction to take cognizance of the
complaint. He purportedly relied on the decision of this
Court in Shreekantiah Rammayya Munipalli & Anr. v. State of
Bombay(1). In the result, he discharged the accused
(appellants, herein).
116
Aggrieved, the complainant filed a revision petition
which was dismissed by the Additional Sessions Judge, on
December 6, 1968, on the ground that since the shortage of
goods was discovered at the time when they were produced
before the Customs House, and there was absolutely nothing
to show that the goods in question remained in the personal
custody of the appellants, "it was difficult to hold that
the shortage, if any, was due to the act of the accused."
The complainant went in further revision to the High
Court, which was heard and allowed by a learned Judge by his
judgment now under appeal before us. After an elaborate
discussion, the learned Judge has held that no sanction was
required for the prosecution of the accused appellants for
an offence under Sections 120B/409, Indian Penal Code,
because "they were certainly not acting in the discharge of
their official duties, when they misappropriated these
goods".
The first contention of Mr. Mukerjee, learned Counsel
for the appellants is that the complainant has falsely
alleged in the complaint that when the Sub-Divisional
Magistrate, Shri Sikka, in compliance with the order of the
High Court, inspected the goods and noted the condition
thereof, "it was found that the seals of four boxes were
broken, while the remaining three packages were completely
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empty but sealed". It is maintained that the inventory
itself, prepared by Shri Sikka, falsifies this allegation.
It is further pointed out that in the complaint it is not
alleged with particularity as to what goods disappeared or
were removed, nor that the disappearance of some of the
goods, if any, occurred after their seizure and before their
deposit in the Customs House by the appellants, and that the
allegation made by the complainant during arguments before
the High Court, to the effect, that the goods in question
were misappropriated sometime after seizure and before their
deposit in the Customs House, was not based on any facts or
circumstances appearing in the statements of the complainant
and Shri Sikka recorded during the preliminary enquiry.
Learned counsel also repeatedly urged that the allegations
regarding the commission of the offence of criminal breach
of trust by the appellants, were false and groundless. For
this purpose, it is stressed, the Court should not confine
itself to the allegations in the complaint but also consider
all the evidential material on the record including that
brought on the record by the appellants. In support of the
contention that the question of sanction can be raised from
stage to stage, Mr. Mukherjee relied on certain observations
of this Court in Matajog Dobey v. H. C. Bari(1).
We have no quarrel with the proposition that the
question of sanction under Section 197, Cr.P.C. can be
raised and considered at any
117
stage of the proceedings. We will further concede that in
considering the question whether or not sanction for
prosecution was required, it is not necessary for the Court
to confine itself to the allegations in the complaint, and
it can take into account all the material on the record at
the time when the question is raised and falls for
consideration. Now, in paragraph 20 of the complaint, it was
clearly alleged that the Sub-Divisional Magistrate, Shri H.
L. Sikka found that the seals of four boxes had been
tampered with and one of the boxes broken, while the
remaining three packages "were completely empty but sealed".
Mr. Mukherjee has not read out or referred to any portion of
the statement of Shri H. L. Sikka recorded under Section
202, Cr.P.C., to show that the same contradicts or falsifies
the allegations in paragraphs 19, 20 and 21 of the
complaint. Indeed, no copy of the statements of the
complainant and Shri Sikka recorded in proceedings
preliminary to the issue of process, has been furnished for
our perusal. It is true that the precise time and manner or
the misappropriation and the detailed particulars of the
items of goods alleged to have been misappropriated, are not
given in the complaint. But it seems that some foundation
for the allegation that the goods in question had been
misappropriated by the appellants sometime after their
seizure and before their deposit in the Customs House, had
been laid during the preliminary enquiry made by the
Magistrate. This allegation was made not only before the
High Court, but has been reiterated by the complainant in
paragraph 12 of his counter-affidavit that he had filed in
this Court in opposition to the special leave petition of
the appellants. For this averment, he relied on a certain
letter/notice dated January 30, 1963 addressed to him by the
Customs Authority.
Thus, the material brought on the record upto the stage
when the question of want of sanction was raised by the
appellants, contained a clear allegation against the
appellants about the commission of an offence under Section
409, I.P.C. To elaborate, it was substantially alleged that
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the appellants had seized the goods and were holding them in
trust in the discharge of their official duty, for being
dealt with or disposed of in accordance with law, but in
dishonest breach of that trust, they criminally
misappropriated or converted those goods. Whether this
allegation or charge is true or false is not to be gone into
at this stage. In considering the question whether sanction
for prosecution was or was not necessary, these criminal
acts attributed to the accused are to be taken as alleged.
For these reasons, we overrule the first contention
canvassed on behalf of the appellants.
118
The second contention advanced by Mr. Mukherjee is in
the alternative. It is submitted that even if for the sake
of argument, it is assumed that some of the goods were
removed and set apart by the appellants after seizure, then
also, the seizure and the removal being integrally connected
with each other the alleged act constituting the offence of
criminal misappropriation/criminal breach of trust could but
reasonably be viewed as an act which includes dereliction of
duty-done or purporting to be done in the discharge of their
official duty by the appellants. It is argued that S. 197,
Cr. P. C. cannot be construed too narrowly, in the sense
that since the commission of offence is never a part of the
official duty of a public servant, an act constituting an
offence can never be said to have been done or purportedly
done in the discharge of official duty. Such a narrow
construction, it is submitted, will render the Section
entirely otiose. For law on the point, the learned counsel
referred to several decisions of this Court. He took us
through the relevant passages of the judgment in Matajog’s
case (supra), and strongly relied on the ratio of Shree-
kantiah Rammayya’s case (ibid) and Amrik Singh v. The State
of Pepsu (1)
The words "any offence alleged to have been committed
by him while acting or purporting to act in the discharge of
his official duty" employed in Section 197(1) of the Code,
are capable of a narrow as well as a wide interpretation. If
these words are construed too narrowly, the Section will be
rendered altogether sterile, for, "it is no part of an
official duty to commit an offence, and never can be". In
the wider sense, these words will take under their umbrella
every act constituting an offence, committed in the course
of the same transaction in which the official duty is
performed or purports to be performed. The right approach to
the import of these words lies between these two extremes.
While on the one hand, it is not every offence committed by
a public servant while engaged in the performance of his
official duty, which is entitled to the protection of
Section 197(1), an act constituting an offence, directly and
reasonably connected with his official duty will require
sanction for prosecution under the said provision. As
pointed out by Ramaswami J. in Baijnath v. State of M.P.(2)
"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."
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
119
be one which has been committed by the public servant either
in his official capacity or under colour of the office held
by him.
While the question whether an offence was committed in
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the course of official duty or under colour of office,
cannot be answered hypothetically, and depends on the facts
of each case, one broad test for this purpose, first deduced
by Varadachariar J. of the Federal Court in Hori Ram v.
Emperor, (1) is generally applied with advantage. After
referring with approval to those observations of
Varadachariar J., Lord Simonds in H.H.B. Gill v. The
King.(2) tersely reiterated that 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."
Speaking for the Constitution Bench of this Court,
Chandrasekhar. Aiyer J., restated the same principle, thus:
".....in the matter of grant of sanction under Section
197, the offence alleged to have been committed by the
accused must have something to do, or must be related in
some manner, with the discharge of official duty...there
must be a reasonable connection between the act and the
discharge of official duty; the act must bear such relation
to the duty that the accused could lay a reasonable claim,
but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty".
(Emphasis supplied)
Let us now apply this broad test to the facts of the
case as alleged and sought to be proved by the complainant.
The allegation against the appellants is about the
commission of offences under Sections 409/120B, Indian Penal
Code. To be more precise, the act complained of is dishonest
misappropriation or conversion of the goods by the
appellants, which they had seized and as such, were holding
in trust to be dealt with in accordance with law. There can
be no dispute that the seizure of the goods by the
appellants and their being thus entrusted with the goods or
dominion over them, was an act committed by them while
acting in the discharge of their official duty. But the act
complained of is subsequent dishonest misappropriation or
conversion of those goods by the appellants, which is the
second necessary element of the offence of criminal breach
of trust under Section 409, Indian Penal Code. Could it be
said, that the act of dishonest misappropriation or
conversion complained of bore such an integral relation to
the duty of the appellants
120
that they could genuinely claim that they committed it in
the course of the performance of their official duty ? In
the facts of the instant case, the answer cannot but be in
the negative. There is nothing in the nature or quality of
the act complained of which attaches to or partakes of the
official character of the appellants who allegedly did it.
Nor could the alleged act of misappropriation or conversion,
be reasonably said to be imbued with the colour of the
office held by the appellants.
As pointed out by Varadachariar J. in Hori Ram (supra),
generally, in a case under Section 409, Indian Penal Code,
"the official capacity is material only in connection with
the ’entrustment’ and does not necessarily enter into the
later act of misappropriation or conversion, which is the
act complained of."
This, however, should not be understood as an
invariable proposition of law. The question, as already
explained, depends on the facts of each case. Cases are
conceivable where on their special facts it can be said that
the act of criminal misappropriation or conversion
complained of is inseparably intertwined with the
performance of the official duty of the accused and
therefore, sanction under Section 197(1) of the Code of
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Criminal Procedure for prosecution of the accused for an
offence under Section 409, Indian Penal Code was necessary.
Shreekantiah Rammayya (supra) was a case of that kind.
The act complained of against the second accused in that
case was, dishonest disposal of the goods. The peculiarity
of the act was that from its very nature, in the
circumstances of that case, it could not have been done
lawfully or otherwise by the accused save by an act done or
purporting to be done in an official capacity. In other
words, the very charge, was the dishonest doing of an
official act by the accused. Whether the act was dishonest
or lawful, it remained an official act because the accused
could not dispose of the goods save by the doing of an
official act, namely, officially permitting their disposal;
and that he did. It was in view of these special facts of
the case, it was held that the offence under Section 409,
Indian Penal Code was committed or purported to be committed
by the accused in the discharge of his official duty, and,
as such, sanction under Section 197(1) Cr. P.C. was a
prerequisite for his prosecution. The facts of the case
before us are entirely different. The ratio of Shreekantiah
Rammayya has therefore, no application to the facts of the
case before us.
In Amrik Singh v. The State of Pepsu,(1) it was laid
down that whether sanction is necessary to prosecute a
public servant on a charge
121
of criminal misappropriation, will depend on whether the
acts complained of hinge on his duties as a public servant.
If they do, then sanction is requisite. But if they are
unconnected with such duties, then no sanction is necessary.
Amrik Singh’s case also stands on its own facts, which were
materially different from those of the present case. The
correctness of that decision was doubted in Baijnath v.
State of Madhya Pradesh (supra), and its authority appears
to have been badly shaken. In any case, its ratio must be
confined to its own peculiar facts.
There are several decisions of this Court, such as, Om
Parkash Gupta v. State of Uttar Pradesh,(1) Baijnath v.
State of Madhya Pradesh (supra), Marihar Prasad v. State of
Bihar,(2) wherein it has been held that sanction under
Section 197, Criminal Procedure Code for prosecution for an
offence under Section 409, Indian Penal Code was not
necessary. In Om Parkash Gupta’s case (ibid) it was held
that a public servant committing criminal breach of trust
does not normally act in his capacity as a public servant.
Since this rule is not absolute, the question being
dependent on the facts of each case, we do not think it
necessary to burden this judgment with a survey of all those
cases.
In the light of all that has been said above, we are of
opinion that on the facts of the present case, sanction of
the appropriate Government was not necessary for the
prosecution of the appellants for an offence under Sections
409/120-B, Indian Penal Code, because the alleged act of
criminal misappropriation complained of was not committed by
them while they were acting or purporting to act in the
discharge of their official duty, the commission of the
offence having no direct connection or inseparable link with
their duties as public servants. At the most, the official
status of the appellants furnished them with an opportunity
or occasion to commit the alleged criminal act.
In the result, the appeal fails and is dismissed.
N.K.A. Appeal dismissed.
122
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