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REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  159  OF 2016 (@ S.L.P.(Criminal) No. 3906 of 2012)

Punjab State Warehousing Corp. ... Appellant

Versus

Bhushan Chander & Anr. ... Respondents

J U D G M E N T

Dipak Misra, J.

The  singular  question  that  has  emanated  in  this

appeal,  by  special  leave,  is  whether  the  High  Court  has

correctly accepted the submission advanced on behalf of the

first respondent, who was convicted for offences punishable

under Section 409/467/468/471 of the Indian Penal Code,

1860 (for short, ‘IPC’) and had been awarded sentence for

each of the offences with the stipulation that they would run

concurrently,  that  he  being an employee of  the  appellant

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Corporation  is  a  public  servant  and  the  trial  had

commenced without obtaining sanction under Section 197

of the Code of Criminal Procedure, 1973 (CrPC) and hence,

the  trial  in  entirety  was  invalid  and  as  a  result  the

conviction and sentence deserved to be set aside.   

2. As far as the factual narration is concerned, suffice it

to state that the Managing Director of the Corporation had

written  a  letter  on  28.6.1989  to  the  concerned  police

authority to register a case against the first respondent for

offences punishable under Sections 409/467/468 and 471

of the IPC or any other appropriate provision of law.  During

investigation,  the  investigating  agency  found  that  the

accused who was  working  as  a  Godown Assistant  in  the

Corporation had misappropriated 11 gunny bales value of

which  was  Rs.38,841/-;  that  he  had  tampered  with  the

record  of  the  department;  and  accordingly  the  police

authorities filed the charge-sheet for the aforesaid offences

before  the  court  of  competent  Judicial  Magistrate.   The

learned  Magistrate  on  the  basis  of  evidence  brought  on

record, found that the prosecution had been able to bring

home  the  guilt  against  the  accused  and  accordingly

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sentenced  him  to  suffer  rigorous  imprisonment  for  three

years under Section 467 and 409 IPC and two years under

Section  468/471  IPC  with  separate  default  clauses.  The

judgment of conviction and order of sentence was assailed

in appeal before the learned Session Judge, Firozpur and

the  matter  was  finally  heard  by  the  learned  Additional

Session  Judge,  who  appreciating  the  evidence  on  record,

concurred with the conviction but modified the sentence of

three years imposed under Section 409 and 467 IPC to two

years.   

3. Being  dissatisfied,  the  first  respondent  preferred

Criminal  Revision  No.  359/2001  in  the  High  Court  of

Punjab and Haryana at Chandigarh.  Before the revisional

court,  the  only  contention  that  was  raised  pertained  to

non-obtaining of sanction under Section 197 CrPC.   It was

argued before the learned Single Judge that in view of the

decisions  in  State  of  Maharashtra  v.  Dr.  Budhikota

Subbarao1, Rakesh Kumar Mishra v. State of Bihar and

others2, Sankaran Moitra v. Sadhna Das and another3,

1  (1993) 3 SCC 339 2  (2006) 1 SCC (Cri) 432 3  (2006) 2 SCC (Cri) 358

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Om Kumar Dhankar v. State of Haryana4, the requisite

sanction having not been obtained,  the trial  was vitiated.

On behalf of the Corporation as well as the State of Punjab,

it  was argued that  the sanction under  Section 197 CrPC

was not necessary to prosecute the first respondent and to

substantiate  the  said  stand,  reliance  was  placed  on  Dr.

Lakshmansingh Himatsingh Vaghela v. Naresh Kumar

Chadrrashanker  Jah5,  N.  Bhargavan  Pillai  (dead)  by

Lrs. and another v. State of Kerala6,  State of U.P. v.

Paras Nath Singh7, Raghunath Anant Govilkar v. State

of  Maharashtra8 and  Choudhury  Parveen  Sultana  v.

State of West Bengal9.

4. The  learned  Single  Judge  referred  to  the  charges

framed under Section 409 and 467 IPC.  He also referred to

the  authorities  in  Prakash  Singh  Badal  v.  State  of

Punjab10, Nirmal Singh Kahlon v. State of Punjab11,  Om

Kumar  Dhankar (supra)  and  Bakshish  Singh  Brar  v.

4  (2007) 3 RCR (Criminal) 496 : 5  (1990) 4 SCC 169 6  (2004) 2 Cri. CC 575 7  (2009) 6 SCC 372  8  (2008) 11 SCC 289 9  (2009) 3 SCC 398 10  (2007) 1 RCR (Criminal) 1 11  (2008) 2 RCR (Criminal) 208

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Gurmel Kaur12 and analyzing Section 197 CrPC observed

that  the  said  provision  is  meant  to  protect  responsible

public servants against the institution of vexatious criminal

proceedings for offences alleged to have been committed by

them.  The learned Single Judge referred to P. Arulswami

v. State of Madras13, Matajog Dube v. H.C. Bahri14, P.K.

Pradhan v. State of Sikkim15, reproduced a passage from

B. Saha v. M.S. Kochar16, and came to hold as follows:-

“So far as the commission of offence in this case is  concerned,  the  very  allegation  would  clearly reveal that it is not a case where the allegations are in any other capacity than a public servant. The allegation against the petitioner is that while being  a  public  servant,  he  had  committed  a criminal  breach  of  trust.   It  is  only  in  the performance  of  the  official  duty  that  the petitioner  is  alleged  to  have  been  found  with certain  deficiencies  for  which  allegation  of criminal breach of trust as well has been made against him.  Certainly the facts in this case are inextricably mingled with the official duty of the petitioner  to be considered severable to call  for dispensing with the requirement of sanction”.

12  1988 (1) RCR (Criminal) 35 13  AIR 1967 SC 776 14  AIR 1956 SC 44 15  2001 (3) RCR (Cri.) 835 (SC) 16  (1979) 4 SCC 177

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5. After so stating, the revisional court distinguished the

decision  in  Paras  Nath  Singh (supra)  which  was  relied

upon by the prosecution by stating thus:-

“The aggrieved person in the said case has faced trial  for  alleged  commission  of  the  offences punishable under Section 409, 420, 461 and 468 IPC.  The Supreme Court in this case has drawn difference  between  the  official  duty  and  doing something by public servant in the course of his service.  It is observed that the section does not extend  its  protective  cover  to  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.  Even this observation of the Hon’ble Supreme Court would fully apply to  the  facts  of  the  present  case.   Here,  the petitioner  is  alleged  to  have  committed  this offence not only as a public servant but is stated to have done so in discharge of his official duty. In  discharge  of  his  official  duty,  the  petitioner was required to protect stock, which he failed to do  so  and  so  he  is  asked  to  account  for  the same”.

6. The  eventual  conclusion  recorded  by  the  learned

Single Judge is to the following effect:-

“Under normal circumstances, the offence under Sections  467/468/471  IPC  may  be  of  such  a nature  that  requirement  of  obtaining  sanction under Section 197 CrPC may not be called for. The  offences  in  this  case  have  been inter-connected  with  the  main  offence  alleged against the petitioner under Section 409 IPC and it would clearly indicate that these offences could

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not  be  separately  treated  or  dealt  with. Requirement  of  obtaining  sanction  would  be needed for an offence under Section 409 IPC and the  same  may  not  be  separated  from  the remaining offences”.  

7. After so stating, the learned Single Judge ruled that

the Corporation is a fully government-owned and financed

by  the  State  Government  and,  therefore,  he  is  a  public

servant  as  per  the  definition  of  Section  21  of  IPC  and,

therefore, his employment in the Corporation would confer

him  the  status  of  public  servant  for  which  sanction  is

necessary.  The revisional court has not adverted to any of

the aspects touching merits of the case and, therefore, we

refrain from entering into the said arena.   

8. Section 197(1) and (2) CrPC which are relevant for the

present purpose are reproduced below:-

“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 save  as  otherwise  provided  in  the  Lokpal  and Lokayuktas Act, 2013—

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(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:

Provided that where the alleged offence was committed by a person referred to in clause (b)  during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression ‘State Government’  occurring  therein,  the expression  ‘Central  Government’  were substituted.

Explanation.—For the removal of doubts it is hereby  declared that  no  sanction  shall  be required in case of a public servant accused of  any  offence  alleged  to  have  been committed  under  Section  166-A,  Section 166-B, Section 354, Section 354-A, Section 354-B,  Section  354-C,  Section  354-D, Section  370,  Section  375,  Section  376, Section  376-A,  Section  376-C,  Section 376-D or  Section 509 of  the  Indian Penal Code (45 of 1860).

(2) No  Court  shall  take  cognizance  of  any offence alleged to  have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his

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official duty, except with the previous sanction of the Central Government.”

9. In  Matajog  Dube  (supra),  certain  complaints  were

alleged against the authorized officials on the ground that

the  officials  had  committed  offences  punishable  under

Sections  323,  341,  342 and 109 IPC.   The officials  were

arrayed as accused persons who were authorized to search

two premises in question.  The trial Magistrate discharged

the accused persons for want of sanction under Section 197

CrPC.  Similar order was passed by another trial Magistrate.

Both the orders were concurred with by the High Court.  Be

it noted two cases had arisen as two complaints were filed.

It was contended before this Court that the act of criminal

assault or wrongful confinement can never be regarded as

act done while acting or purporting to act in the discharge

of  official  duty  and  that  duty  is  clearly  defined  in  the

statute.  The Constitution Bench referred to two decisions of

the  Federal  Court  and  the  decisions  of  this  Court  in

Shreekantiah Ramayya Munipalli v. State of Bombay17

17  AIR 1955 SC 287

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and  Amrik Singh v. State of Pepsu18 and analyzing the

earlier authorities opined that:-

“The result of foregoing discussion is this: 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”.

10. Thereafter, the Court adverted to the determination of

need  of  sanction  and  the  relevant  stage.   We  are  not

concerned with the said aspects in the present case.     

11. In  Arulswami  (supra),  the President of  a Panchayat

Board was convicted under  Section 409 IPC by the High

Court which had overturned the decision of the lower court.

It was argued before the High Court that the prosecution

was  not  maintainable  for  want  of  sanction  by  the  State

Government  under  Section  106  of  the  Madras  Village

Panchayats Act  (Madras Act X of 1950).  The High Court

held that no sanction of the Government was necessary as

the appellant had ceased to hold the office of the President,

when the prosecution was launched and further that the

18  AIR 1955 SC 309

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sanction of the Collector was sufficient in law.  That apart,

this Court posed the question whether the sanction of the

Government  under  Section  106  of  the  Madras  Act  was

necessary  for  the  prosecution  of  the  appellant  for  the

offence  under  Section  409  IPC.   To  appreciate  the

contention raised, the Court referred to Section 197 CrPC.

The three-Judge Bench referred to  the  decisions  in  Hori

Ram Singh v. Emperor19 and  H.H.B. Gill v. The King20.

The  three-Judge  Bench  quoted  the  observations  of  Lord

Simonds  made  in  H.H.B.  Gill (supra)  in  approving  the

statement of law made in  Hori Ram Singh  (supra).  The

Court also took note of the fact that the decision in H.H.B.

Gill (supra) had been approved in  Albert West Meads v.

The King21, Phanindra Chandra v. The King22 and R. W.

Mathams v. State of West Bengal23 and eventually held:-

“It is not therefore every offence committed by a public  servant  that  requires  sanction  for prosecution  under  S.  197(1)  of  the  Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is  directly  concerned with  his  official  duties  so

19  1939 FCR 159 (AIR 1939 FC 43) 20  1948 FCR 19 : (AIR 1948 PC 128) 21  AIR 1948 PC 156 22  AIR 1949 PC 117 23  AIR 1954 SC 455

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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  S.  197  of  the  Criminal Procedure Code will be attracted.  An office 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”.

12. The Court while arriving at the said conclusion also

placed reliance on  Om Prakash Gupta v. State of U.P.24

and  ultimately  came  to  hold  that  the  sanction  of  the

Government is not necessary for prosecution of the accused

under Section 409 IPC.   

13. The  aforesaid  two  authorities  make  it  clear  that  no

sanction is needed to launch the prosecution for the offence

punishable under Section 409 IPC.  As we notice from the

impugned  judgment,  the  learned  Single  Judge  has  been

swayed away by what has been stated in B. Saha (supra).

In the said case, the appellants had sought discharge on

the ground that cognizance of the complaint had been taken

without  obtaining  sanction  under  Section  197  CrPC  and

Section 155 of the Customs Act, 1962.  The Magistrate had

accepted  the  objection  relying  on  the  decision  in 24  AIR 1957 SC 458

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Shreekantiah  Ramayya  Munipalli  (supra).   The  said

order was challenged by the complainant before the High

Court  and  the  learned  Single  Judge,  after  elaborate

discussion  opined  that  no  sanction  was  required  for  the

prosecution of the accused-appellants for the offence under

Sections  120-B/409 IPC because  they  were  certainly  not

acting in the discharge of  their official  duties,  when they

misappropriated  the  goods.   The  three-Judge  Bench

analyzing the ambit and scope of Section 197 CrPC opined

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(1) of the Code, are

capable of a narrow as well as a wide interpretation.  If the

said 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”. The Court

proceeded to observe that in the wider sense, the said 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 and the right  approach to the import of  these

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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.   The  Court  referred  to  the

observations of  Ramaswami,  J.,  in  Baijnath v.  State of

M.P.25, which is to the following effect:-  

“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”.

After so stating, the Court held that 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.

14. The Court thereafter observed that whether an offence

had been committed in the course of official  duty or not,

25  AIR 1966 SC 220

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color of office cannot be answered hypothetically and would

depend on the facts of each case.  The Court referred to the

decisions in Hori Ram Singh (supra) and the observations

made in  Gill’s case for the purpose of  appreciating what

should be the broad test.  The Court reproduced a passage

from  the  Constitution  Bench  in  Matajog  Dube  (supra)

which states about reasonable connection between the act

and the discharge of  official  duty, and that 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.  We have

ingeminated the same, though we had earlier  reproduced

the same.  

15. After so stating, the Court adverted to the facts.  The

Court  noticed  that  the  fact  complained  of  is  dishonest

misappropriation  for  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.

The Court opined there can be no dispute that the seizure

of  the  goods  by  the  appellants  being  entrusted  with  the

goods or dominion over them was an act committed by them

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while acting in the discharge of their official duty, but the

act complained of  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 IPC, and hence, it could not be

said  that  the  act  was  committed  in  the  course  of

performance of their official duty.  It was observed by the

Court that there was nothing in the nature or quality of the

act complained of which attaches to or partakes the official

character of the appellants who allegedly did it nor could

the alleged act of misappropriation or conversion reasonably

said to be imbued with the color of the office held by the

appellants.   The Court  referred to  the  test  in  Hori  Ram

Singh (supra) and thereafter stated thus:-

“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 Criminal Procedure for prosecution of the  accused  for  an  offence  under  Section  409, Indian Penal Code was necessary”.

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16. The three-Judge Bench distinguished the decision in

Shreekantiah  Ramayya  Munipalli  (supra)  and  also

Amrik Singh (supra).  The ultimate conclusion of the Court

reads thus:-

“There are several decisions of this Court, such as, Om Prakash Gupta v. State of U.P.; Baijnath v. State of M.P. (supra) and Harihar Prasad v. State of Bihar26, 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 Prakash Gupta case (supra)  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  pot  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”.

On the aforesaid analysis, the appeal was dismissed.

We  will  advert  to  the  appreciation  of  the  ratio  of  the

aforesaid decision by the learned Single Judge after we take

note of certain other authorities.  

17. In  State  of  Maharashtra  v.  Dr.  Budhilota

Subbarao27, the Court referred to the authority in B. Saha

(supra),  Arulswami (supra) and stated that the concept of

sanction has been widened by extending protection to even 26  (1972) 3 SCC 89 27  (1993) 3 SCC 339

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those  acts  or  omissions  which  are  done  in  purported

exercise  of  official  duty  and  that  is  under  the  colour  of

office.   Proceeding  further,  the  Court  stated  that  official

duty implies that the act or omission must have been done

by the public servant in course of his service and such act

or omission must have been performed as a part of  duty

which further must have been official in nature.   As has

been stated by the Court, the provision has to be construed

strictly  while  determining  its  applicability  to  any  act  or

omission in course of service and its operation has to be

limited to those duties which are discharged in course of

duty.   It has been held that:-

“But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the  entire  purpose  of  affording  protection  to  a public  servant  without  sanction  shall  stand frustrated.  For  instance  a  police  officer  in discharge of  duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary”.

18. The facts in the said case are absolutely different but

we have only  referred to the said authority  to appreciate

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that it has reiterated the principle that an act must bear a

relation to the duty that the accused could lay a reasonable

claim that the act has been in exercise of official duty or

duty that has been done has the colour of office.  

19. In Shambhoo Nath Misra v. State of U.P.28, a private

complaint  was  filed  by  the  appellant  therein  against  the

second  respondent  for  the  offences  punishable  under

Sections  409,  420,  465,  468,  477-A  and  109  IPC.   The

learned  Magistrate  had  dismissed  the  complaint  holding

that  sanction under  Section 197 CrPC was not  obtained.

The High Court accepted the view of the learned Magistrate.

Be  it  stated,  the  learned  Judge  had  relied  upon  the

judgment of Hori Ram Singh (supra), B. Saha (supra) and

Gill’s case.  The Court observed that the requirement of the

sanction by competent authority or appropriate Government

is  an assurance and protection to the honest  officer  who

does  his  official  duty  to  further  public  interest.  However,

performance of official duty under colour of public authority

cannot be camouflaged to commit crime. The Court further

stated that to proceed further in the trial or the enquiry, as

28  (1997) 5 SCC 326

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the  case  may  be,  it  has  to  apply  its  mind and  record  a

finding that the crime and the official duty are not integrally

connected.

20. Thereafter, the Court held:-

“It is not the official duty of the public servant to fabricate  the  false  records  and  misappropriate the public funds etc. in furtherance of or in the discharge  of  his  official  duties.  The  official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean  that  it  is  integrally  connected  or inseparably interlinked with the crime committed in  the  course  of  the  same transaction,  as  was believed  by  the  learned  Judge.  Under  these circumstances,  we  are  of  the  opinion  that  the view expressed by the High Court as well as by the  trial  court  on  the  question  of  sanction  is clearly illegal and cannot be sustained”.

Being of this view, the Court allowed the appeal and

set  aside  the  order  of  the  Magistrate  and  directed

restoration of the complaint.  

21. In State of Kerala v. V. Padmanabhan Nair29  it has

been  held  that  when  no  sanction  under  Section  197  is

necessary for taking cognizance in respect of  the offences

under Section 406 and Section 409 read with Section 120-B

IPC.  Similar principle has been laid down in State of H.P.

29 (1999) 5 SCC 690

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v. M.P. Gupta30. In Parkash Singh Badal and another v.

State of Punjab and others31 it has been ruled that the

offence  of  cheating  under  Section 420 or  for  that  matter

offences relatable to Sections 467, 468, 471 and 120-B 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.  Similar principle

has  been  reiterated  in  Choudhury  Parveen  Sultana  v.

State of West Bengal and another32 wherein the Court

referred to the authority in  Bhagwan Prasad Srivastava

v. N.P. Mishra33 and ruled thus:-

“12. It was also observed in Bhagwan Prasad Srivastava (supra) that Section 197 has been designed to facilitate effective and unhampered performance  of  their  official  duty  by  public servants  by  providing  for  scrutiny  into  the allegations of  commission of  offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the courts. It was finally observed that the question whether a particular act is done by  a  public  servant  in  the  discharge  of  his

30 (2004) 2 SCC 349 31 (2007) 1 SCC 1 32 (2009) 3 SCC 398 33 (1970) 2 SCC 56

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official duties is substantially one of the facts to be determined in the circumstances of each case.”

22. A survey of the precedents makes it absolutely clear

that  there  has  to  be  reasonable  connection  between  the

omission or commission and the discharge of official duty or

the act committed was under the colour of the office held by

the official.   If  the acts omission or commission is totally

alien  to  the  discharge  of  the  official  duty,  question  of

invoking Section 197 CrPC does not arise.  We have already

reproduced  few  passages  from  the  impugned  order  from

which it is discernible that to arrive at the said conclusion

the  learned  Single  Judge  has  placed  reliance  on  the

authority in B. Saha’s (supra).  The conclusion is based on

the  assumption  that  the  allegation  is  that  while  being  a

public  servant,  the  alleged  criminal  breach  of  trust  was

committed  while  he  was  in  public  service.   Perhaps  the

learned Judge has kept in his mind some kind of concept

relating  to  dereliction  of  duty.   The  issue  was  basically

entrustment and missing of the entrusted items.  There is

no dispute that the prosecution had to prove the case.  But

the public servant cannot put forth a plea that he was doing

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the whole act as a public servant.  Therefore, it is extremely

difficult to appreciate the reasoning of the High Court.  As is

noticeable  he  has  observed  that  under  normal

circumstances  the  offences  under  Sections  467,  468 and

471 IPC may be of such nature that obtaining of sanction

under Section 197 CrPC is not necessary but when the said

offences are interlinked with an offence under Section 409

IPC  sanction  under  Section  197  for  launching  the

prosecution for the offence under Section 409 is a condition

precedent.  The approach and the analysis are absolutely

fallacious.  We  are  afraid,  though  the  High  Court  has

referred to all the relevant decisions in the field, yet, it has

erroneously applied the principle in an absolute fallacious

manner.  No official  can put forth a claim that breach of

trust is connected with his official duty.   Be it noted the

three-Judge Bench in B. Saha (supra) has distinguished in

Shreekantiah Ramayya Munipalli (supra) keeping in view

the facts of the case.  It had also treated the ratio in Amrik

Singh (supra) to be confined to its own peculiar facts.  The

test to be applied, as has been stated by  Chandrasekhara

Aiyar, J. in the Constitution Bench in Matajog Dube (supra)

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which we have reproduced hereinbefore.  The three-Judge

Bench in  B.  Saha (supra)  applied  the  test  laid  down in

Gill’s case wherein Lord Simonds has 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.

23. Tested on the touchstone of said principles, it cannot

be said that in the obtaining factual matrix, sanction under

Section  197  CrPC  was  necessary.   We  are  compelled  to

observe that the High Court should have been more vigilant

in understanding the ratio of the decisions of this Court.  

24. Another line of argument was advanced on behalf of

the appellant-Corporation that even if the respondents are

treated as public servants, they being the employees of the

Corporation, they do not get the protective shelter of Section

197  CrPC.  In  Lakshmansingh  Himatsingh  Vaghela

(supra),  a  three-Judge  Bench  dissecting  the  anatomy  of

Section 197(1) CrPC opined that the said provision  clearly

intends  to  draw  a  line  between  public  servants  and  to

provide that only in the case of the higher ranks should the

sanction  of  the  government  to  their  prosecution  be

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necessary. While a public servant holding an office of the

kind  mentioned  in  the  section  is  as  such public  servant

appointed to another office, his official acts in connection

with  the  latter  office  will  also  relate  to  the  former  office.

Thereafter, the Court ruled:-

“The words “removable from office” occurring in Section 197 signify removal from the office he is holding. The authority mentioned in the section is the authority under which the officer is serving and competent  to terminate  his  services.  If  the accused is under the service and pay of the local authority,  the  appointment  to  an  office  for exercising  functions  under  a  particular  statute will  not  alter  his  status as an employee of  the local authority”.

25. In  the  said  case,  the  appellant  was  admittedly  a

laboratory  official  in  the  service  and  pay  of  Municipal

Corporation  of  Ahmedabad.   His  appointment  as  Public

Analyst by the Government, as held by this Court, did not

confer him the status of a public servant or an officer under

service and pay of the Government.  Being of this view, the

Court opined he was not a public servant removable only by

the State Government and accordingly allowed the appeal.  

26. In  Md. Hadi Raja v. State of Bihar34 the question

arose  whether  Section  197  CrPC  was  applicable  for 34  AIR 1998 SC 1945

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prosecuting officers of the public sector undertakings or the

Government  companies  which  can  be  treated  as  State

within the meaning of Article 12 of the Constitution of India.

The  Court  referred  to  Section  197  CrPC,  noted  the

submissions and eventually held that the protection by way

of sanction under Section 197 CrPC is not applicable to the

officers  of  Government  Companies  or  the  public

undertakings  even  when  such  public  undertakings  are

‘State’ within the meaning of Article 12 of the Constitution

on account of deep and pervasive control of the government.

27. The High Court has not  accepted the submission of

the Corporation in this regard.  We are constrained to note

that  the  decision  in  Md.  Hadi  Raja (supra)  has  been

referred to in the grounds in this appeal.  There is nothing

on record to suggest that the said decision was cited before

the  High Court.   It  has  come to  our notice  on many an

occasion that the relevant precedents are not cited by the

Corporations and the government undertakings before the

High Court.  We should, as advised at present, only say that

a concerted effort should be made in that regard so that a

stitch in time can save nine.

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28. In  view  of  the  aforesaid  analysis,  the  irresistible

conclusion is that the respondents are not entitled to have

the protective umbrella of Section 197 CrPC and, therefore,

the High Court has erred in setting aside the conviction and

sentence  on  the  ground  that  the  trial  is  vitiated  in  the

absence  of  sanction.   Consequently,  we allow the  appeal

and set aside the judgment and order passed by the High

Court and remit the matter to the High Court to decide the

revision petition in accordance with law.  

...............................J.    [Dipak Misra]

...............................J. New Delhi,         [Shiva Kirti Singh] June 29, 2016

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