H.L. Anand, J.
(1) Two questions arise in this petition: If the petitioner, a class Ii officer of the Central Government, can be said to be 'not removable from his office save by or with the sanction of the government'? If so, can it be said on the facts of this case, if he was 'accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'? These questions arise in the context of a challenge to the validity of his prosecution on the ground that in the absence of sanction of government u(s 197 of the Code, the Court seized of the case could not have taken cognizance of the offence.
(2) The facts are these : The petitioner is being tried for an offence under Sections 420 and 467 of the Indian Penal Code of allegations that as a public servant, he had drawn advance. against daily allowance and traveling allowance, to carry out official duties outside Delhi and submitted false T.A. adjustment Bill and supporting vouchers to. claim an amount larger than he had in fact incurred. The prosecution had been admittedly filed without obtaining the sanction of government and if such a sanction was necessary in the case of the petitioner in virtue of Section 197 of the Code of Criminal Procedure, the Court obviously could not have taken cognizance of the offences. At the fag-end of the trial, the petitioner was advised to assail the validity of the prosecution on the ground of want of sanction. The challenge failed and the order of the trial court was upheld in revision. 'The contention on behalf of the petitioner in the courts below was two-folds Petitioner was not removable save by or with the sanction of 'government' and this power in the case of the petitioner was to be exercised by the Head of the Department i.e. the Director General of All India Radio. The offence is alleged to have been committed by the petitioner 'while acting or purporting to act in the discharge of his official duty'. Both the contentions were negatived by the courts below. The courts below read the expression 'government' in Section 197(1) of the Code of Criminal Procedure, to mean the President, in the case of Central Government, and held that the protection of the subject ''on was available to a public servant, who had been appointed by the President and was removable by him and the petitioner, who had been appointed and could be removed by the Director General of All India Radio, was outside the purview of the protection. That all executive power vested in the President by virtue of Article 53 of the Constitution and was exercised by him either directly or through officers subordinate to him in terms of the Rules of Business, made in exercise of power conferred by Article 77 of the Constitution of India. and that these functionaries were exercising executive power of the Union and their orders were the orders of the government, either as delegates of the President or as the instrumentalities. through which the President exercised executive Power, apparently did not appeal to either of the courts below. On the second question, the courts below expressed the view that in defrauding the government, inter alia, by submitting false Bill and vouchers, or in fabricating false documents petitioner could not be said to be either 'acting or purporting to act in the discharge of his official duties, fraud or making a false document being no part of the official duty of any public servant'. It was further held that in any event, preparation of a T.A. Bill and that too an inflated one, was neither part of the official duty of the petitioner nor connected with it.
(3) Section 197(1) of the Code runs thus :
'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.'
(4) A number o{ other statutes contain similar provisions either with a view to provide protection to a class of persons or to otherwise control the institution of criminal proceedings in courts in certain category of offences. Section 6 of the Prevention of Corruption Act, 1947 is intended to serve the same purpose as Section 197 but is somewhat differently worded. This is how Section 6 runs :
'6.(1) No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,
(A),in the case of a person who is employed in connection with the affair's of the Union and is not remov'able from his office save by or with the sanction of the Central Government, of the Central Government;
(B)in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government;'
(C)in the case of any other person, of the authority competent to remove him from his office.
(2)Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority, which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.'
4.Before examining the question if the petitioner would be among the category of public servants, who are within the protection of sub-section (1) of Section 197 of the Code, it may be useful to consider the object sought to be achieved by the provision, as indeed. Section 6 of the Prevention of Corruption Act, and similar provisions in other statutes and the scope of the functions of authorities called upon to consider the question if sanction should be given or withheld as also the manner in which the power or the duty to grant or withhold sanction is to be exercised or discharged, as the case may be. Some aspect of this question are beyond controversy, Power has the tendency to corrupt. Public servants are directly concerned with the exercise of power. There are two impieties in dealing with public servants. No public servant, who misuses power for one purpose or the other must be allowed to escape the clutches of law. An honest public servant should have the protection against harassment by frivolous, vexatious or substantiated allegations, particularly because in their dealings with the public, public servants are likely to come in conflict with individual interests and are thus in a sensitive relationship with the people .or the interests they deal with in discharge of their official duties. The provision of Section 197. and analogous provision in other Statutes are intended to provide such protection. Corruption, whether consisting in its narrow sense of defrauding government of its revenues or in its wider meaning, of taking undue advantage of an official position to enrich oneself or of those in whom one may be interested is widely believed to have been almost institutionalized in this country and is, thereforee, considered rampant at almost all levels. There must be exceptions but that is more an expression of a hope rather than a definite statement of fact. Corruption. whether in one form of misuse of power or the other may have been 'institutionalized' but, could not be said to have been standardised. It is of a variety of shades, dimensions and gravity. it spans two extremes of ventral to the scandalous. It varies in its dimensions from a menial government servant attempting to sweeten a cup of tea by misuse of his official position to as grave as international cut-backs of near 'Lockheed' variety. They are all acts of corruption but they naturally differ in the extent of their gravity.. The motivations also take myriad forms from self-aggrandisement to the funding of polity or the election process. It is difficult to put all these acts in one class or to consider all as belonging to the same quality. Some are common, while others are uncommon; some are known while others remain unknown. Some of these are so common that they are almost rooted in the tradition of service under the State, almost to the point of being treated as virtual legitimate 'packs of the posts'. It is quite common among government servants to earn a little money on the side when required to go out of station in connection with official work. They may stay or eat with friends or relations or in cheaper places but claim the maximum permissible daily allowance. Some of them may even use cheaper means of travel but claim the maximum permissible amount. If the authority called upon to grant or withhold sanction for prosecution is to consider all aspects of the delinquent act, its approach to the various shades of corruption would hardly be uniform. With all that one hears of corruption in high places, it is quite paradoxical that those in high places, if involved in corruption, extensively or otherwise, seem to be almost immune from the clutches of law as like the detection of crime generally, the crime of corruption is still the minimal and if at all detected, it is the smallest fry who is caught but never those in the higher rungs of the ladder. While it is the undoubted policy of law not to spare anyone who is guilty, irrespective of his status or position, there is obvious universal concern to protect the honest public servant from trumpeted false charge of corruption, as also not to unnecessarily magnify a trivial or a venial violation of the rules. If a provision like Section 197 of the Code of Criminal Procedure had such a laudable object, its protection surely could not have been intended to be confined to the elite class of public servants and one would have to think of good reasons to deny the lower runes of the public service the benefit of such a protection. A discriminatory protection would perhaps expose the provision to the risk of being struck.down as unconstitutional. Could it be said on the language of Section 197 that it was nevertheless intended to protect only the superior class (it public 'servants who could not be removed save by the President of India so that 'public servants, who could be appointed and remold by 'lower functionaries of the government, for some reason did not deserve 'the protection? If the object of the provision be to give protection to the public servant, either of a class or .generally against unnecessary harassment of an illfounded prosecution, in the discharge of or purported discharge of their official duty what is the scope of the function of the authority is granting or withholding the sanction? What, if any, is the manner envisaged by the provision in which such. a functionary would exercise the power. If the sanction be a sine qua .non for taking .the cognizance the provision obviously operates.as afar and if the bar is to be lifted, would the grant of a sanction be .construed as an act which 3s prejudicial to the interest of the public servant, whose prosecution is sought to besanctioned? If that be so, would the power to grant sanction be subject to an implied duty not Only to consider all the material before granting sanction but also given to the public servant a right of being heard What is it that the sanctioning authority is to consider? Is the sanctioning authority to scrutinise the.material to come to the conclusion if the prosecution would be well-founded or what may be vaguely described as their being a 'prima facie case' for the initiation of proceedings Is the sanctioning authority not concerned with the merits of the controversy Would it be concerned with the expediency, of initiation of prosecution as distinct from its justification in law. This may perhaps involve a policy content. A public servant may prima facie be guilty of a dereliction but it may perhaps be too venial or trivial or there may be other policy considerations why the matter should not be taken to a Court. This aspect may assume importance because government always -has the option to proceed with the public servant departmentally and, after an appropriate procedure, get rid of him if the charge is proved, or, depending on the rules, by a termination simplicitor, without intending to stigmatise the public servant. Some of these questions appear to expose certain important grey areas in this branch of law. Fortunately, I am not concerned in the present proceedings with some of these facets and I hope in course of time, some of these questions would be satisfactorily answered, judicially or by a legislative mandate.
(5) Who, then, is 'a public servant not removable from his office save by or with the sanction of the government', within the meaning of sub-section (1) of Section 197 and what docs the expression 'Central Government' in clause (a) of sub-section (1) connotes It is useful to bear in mind in this context the distinction between a 'public servant' and what is generally described as a 'government servant' or a person in the service of government. All government servants are public servants but the reverse is not necessarily true. Public servant is a much wider concept than the expression 'government servant'. This may have its genesis partly in the distinction that must be made between 'State' and 'Government', They are conceptually different. State is a permanent entity and its affairs are conducted by governments constituted from time to time. Government itself has two components, the permanent bureaucracy and the not-so-permanent political leadership of government. The political leadership of government is liable to be changed from time to time on the outcome of the periodic general elections. In this. sense, there is a 'distinction even between the 'Sovereign's', properly so called and the Head of the State i.c. the President of India in the Constitutional scheme obtaining in this country. The office of the President unlike that of a Sovereign is not hereditar'y. It is an elective office. The distinction between a public servant and a government servant is partly because the expression 'public servant' has been legislatively given a wider meaning than the narrow concept of a government servant. The Constitution does not define government although for certain purposes the expression 'state' is defiled by Article 12 of the Constitution, as including the Government, as indeed, all local or-other authorities. The expression 'government' though not defined by the Constitution, however, finds mention, in the Constitution, notably in the context of conduct of government business and Article 77 of the Constitution lays down the manner in which conduct of business of government of India shall be carried out. The expression 'government' is defined in General Clauses Act, as including both the Central Government and any State Government. The expression 'public servant' is not defined in the General Clauses Act but is defined in Section 21 of the Indian Penal Code and Section 2(y) of the Code of Criminal Procedure provides that words and expressions used in the Code of Criminal Procedure and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. The Code of Criminal Procedure does not define the expression 'Public servant'. Section 197 has had a place in one form or another in the Code of Criminal Procedure since the year 1861. The higher rung of civil servants during the days of the Raj were largely composed of British officers and the object of the provision initially must have been to give the necessary protection to such civil servants who were called upon to perform 'onerous and responsible' functions in riot sd friendly environment to act fearlessly by protecting them from false, vexatious or mala fide prosecutions. In course of time, the protection was extended to the elite civil servants not excluding the important categories of the counterparts of the British civil servants among the Indians in the service of the Raj. Having regard to the history of the provision in the successive codes, the object sought to be achieved by the provision, and the language employed in the provision from time to time, a number of views are possible as to the class of public servants who were sought to be brought within the terms of the protection. One view would be that the Section, as at present worded, was intended to protect the class of public servants who were government servants (and that is why protection was available to such public servants who could be removed by 'government', whether Central or State. A look a,t Section 28 of the Penal Code would leave no 'manner of .doubt .that there are categories of public servants whose removal or appointment was not in the hands of any of the governments. This view had the merit that lit made no distinction between 'one class of -government servants and another even though it was based on a .distinction between [public servants, who were government servants, and public servants, who were not government servants The reasoning in support dl this 'view was based on .the constitutional provisions .in the Government of India Act, as indeed, in our constitution as to the manner :m which government business was 'to be conducted and based on title theory that an order of a government functionary at different levels pursuant to delegated authority or as an instrumentality of exercise of executive powar bound the government and was no different than the order of government. It could thus be said .that .where a government servant could 'be removed by an authority which exercised the delegated power of the government, the position would be the same as if he was removable by the highest functionary of the government. It could also be said in the context of the Constitution of India that in terms of Article 53 of the Constitution. the executive 'power of the Union vests in the 'President and may be exercised .by him either directly or 'through officers subordinate to him -in accordance with the Constitution and when the 'President makes rules for the convenient transaction of business of-government under Article 77(3) of the Constitution, the various functionaries who act in the names of the President or otherwise take executive action of government, are nevertheless acting either as the delegates of the President or as his instrumentalities. The other view was that there has always been different classes of public servants, some of whom were appointed by the highest authority. while the others were appointed and were removable by authorities subordinate to that and that the protection was confined to 'the. important categories of public servants who Could be removed by 'government', as distinct from any authority subordinate to government. In support of this reasoning, it could be said that the expression 'Central Government' has been defined by Section 3(8) of the General Clauses Act and Central Government shall in relation to anything done or to be done after the commencement of the Constitution means the President. On this view, the protection us available to the class of public servants who can be removed only by the President, the protection of the section, thereforee, being denied to public servants, who do not belong to the superior class of civil servants.
(6) In the .year 1917, Coutts Trotter J. of the Madras High Court, who later became its Chief Justice, said in the case of Abdul Khadir Saheb(l) that where the power of government to remove was delegated to an officer, it only meant that government performed that act itself through the medium of a particular officer as the channel through which it is done and that it was an ordinary case of qui facit per alium facit per se. According to the learned Judge, it is no doubt done in accordance with that delegation, but nevertheless, it remains the act of the local government. The expression 'Local Government' then occurred in the Code of 18.98. It was, thereforee, held that the Chairman of the Pallapatti Union who could be removed by the President of the District Board by virtue of delegated authority was within the meaning of the Section, a Public servant not removable from office without the sanction of the local government. This Judgment held the field for a long time and was followed by the Rangoon High Court(2), even though the Allahabad High Court took a contrary view(3) A Division Bench of the Madras High Court, however, reversed Coutts- Trotter J. in 1935 in the case of Pichai Pillai & others (4). The Division Bench expressed the View that the general principle expressed by the phrase qui facit per alium facit per se should not necessarily be acted upon if it appears that its application would involve a breach of another legal principle more specifically applying to the case in point. It was observed that the need to give to the statute due meaning to every part of the language which it employs, was that principle. The argument that all servants of government will come within the Section and the Section so construed was intended to exclude public servants who were not government servants was repelled. It was observed that if the notion of delegation was present to the minds of the drafters of the section, there was nothing to prevent them from indicating this. It was observed that the Section clearly intended to draw a line between public servants and to provide that only in the case of the 'higher ranks' should the sanction of the Local Government to their prosecution be necessary. The Division Bench, however, did not feel called upon to enter into the merits of a policy which thus distinguishes between public servants, who may be prosecuted and those who may not be prosecuted without the prescribed sanction. The way the Division Bench looked at the section was approved by the Federal Court in the case of Afzalur Rahman and others (5). Varadachariar J, who spoke for the Federal Court, pointed out that the provision must be interpreted in the light of certain well-known 'features of the administrative system prevailing in India', otherwise, there is the danger of our ignoring the policy of the Legislature in limiting the 'class of officers' entitled to this protection and of making Section 197 available to all public officers. It was further pointed out that as early as in the Government of India Act, 1858, it v/as recognised that the power of making appointments to offices in India was divided and distributed amongst several authorities in India and existing usage and regulations relating thereto were continued subject to the reservation of power to the Secretary of State in Council to make regulations. It was pointed out that there was certain 'class of officers' who could be dismissed only by or with the sanction of the Local Government and it was to this class of officers alone that the Legislature must have intended to limit the protection. The Federal Court was naturally not. concerned with the constitutional scheme obtaining in the Indian Constitution. They were also not concerned with the concept of equality before the law embodied in the Fundamental Rights Chapter. The 'decision of the Federal Court in the case of Afzalur Rahman (supra) was, however, unreservedly approved by the Supreme Court in the case of K. N. Shukla (6). it Was contended in that case that even if the Railway Board had the power to remove the appellanr, and even if it was acting under the power delegated to it, this principle of the maxim qui facit per alium facit per se applied to the case and the appellant, must be deemed to be removable only by or with the sanction of the Central Government within the meaning of Section 197 of the Code. The contention was, however, repelled and it was observed that if once the Central Government had delegated its power to another authority, with regard to appointment and removal of a public servant, then for the purpose of Section 197, the public servant concerned would not be treated to be a public servant 'not-removable from his office except by or with the sanction of the Central Government'. Reliance was placed on the decision of the Federal Court in the case of Afzalur Rahman (supra) and 'the danger of ignoring the policy of the Legislature in limiting the class of officers entitled to protection and of making the said section available to all public officers', was affirmed. Unfortunately, the change in the context brought about by the Constitution of India or of a possible challenge to the Section on the ground of hostile discrimination between different classes of public servants or' of government servants, was neither canvassed nor considered.
(7) Section 197 of the present Code, which represents a slight variation of the language of the corresponding provision of the earlier Code, is based on the recommendation of the Law Commission of India in its 41st Report, dealing with the Code of Criminal Procedure, 1898. The Commission has dealt with section 197 in paras 15.115 to 15.126. In para 15.119, the Commission noticed the decision of the Supreme Court in the 452 case of Matajog Dobey(7), dealing with the challenge to the virus of Section 197 in the context of Article 14 of (he Constitution of India. In that case, the Court had held that the Section was not ultra virus as the discrimination is based upon a rational classification. Public servants, according to the Supreme Court, have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged, do not require the safeguard. In that case, however, the Court was not called upon to consider whether any unconstitutional discrimination was involved in the Section confining its protection to a few categories of public servants and not to every public servant, as defined in Section 21 of the Indian Penal Code. The Court, had, howevter, observed in that case that 'if the government gives sanction against one public servant but declines to do so against another, then, the government servant against whom sanction is given may possibly complain of discrimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant'. The Commission pointed out that. the discrimination will be patent in a case where a senior officer removable from his office only by the State Government and a subordinate officer is removable from his office by a lesser authority are sought to be prosecuted in connection with. their official duty, and the State Government considers it proper to refuse sanction in respect of the senior officer but has no voice as to the prosecution of the subordinate. The Commission thought it will be 'a nice point of law' to determine-whether the classification adopted in Section 197, of public servants removable from office only by or with the sanction ofthe government and other public servants is 'rational', having regard to the objective of the Safeguard. The Commissioner then referred to the decision of the Supreme Court in the case of Ram Krishna Dalmia (8) and felt that it is a possible view to take that the Parliament- considered, that the need of superior government servants to protection under the Section is the 'clearest' and does not consider it necessary to extend the protection to lower groups of the government servants and that in this view the 453 Section does not offend Article 14. In para 15.120, the Commission considered a suggestion made by a State Government to remove the discrimination, whether unconstitutional or not, by making Section 197 applicable to 'all public servants irrespective of the authority competent to remove them from their offices'. It was noticed that the activities of the government have greatly increased and a public servant at the lowest rung of the ladder is also called upon to perform duties likely to prejudice the interest of certain individuals though the same may be in the larger interest of the society and it was not always possible for the superior officer to perform such duties himself and on a number of occasions, he has to get things dons by his subordinates. It was pointed out tothe Commission that this situation has led to an increased .number of fictitious and frivolous proceedings against public servants who .are outside the protection of the Section, but the Commission expressed the view that they d!d not have 'definite information' in support of this statement. This is how the Commission set out its reason in para 15.121 of the Report, disagreeing with the suggestion of extending the protection to all public: servants :
'HOWEVER,that may be, we do not think it would be proper or prudent to widen the scope of the section so as to cover all public servants irrespective of their grade or rank which goes, part passu, with the importance of the duties they have to perform. 'The definition of 'public servant' given in section 21 of the Indian Penal Code, particularly cause twelfth, is very comprehensive. It includes, besides government servants proper, 'every person in the service or pay of a local authority or of a corporation established by or under a Central, Provincial oi State act or of a government company as defined in Section 617 of the Companies Act, 1956'. The public servants now protected by Section 197 are, broadly speaking, those government servants in the higher grade with more responsible and onerous duties to perform and hence requiring to be protected from vexatious prosecutions which would be highly detrimental to the administrative work of Government': There is, in our opinion, no need to extend this protection to other categories of Government servics.'
(8) The recommendation of the Commission appears not only to be erroneous but unfortunate in that it lies suggested the retention of an apparently discriminatory provision which, apart from the 'aspect of its constitutionality appears to be anachronistic in the context of the classless society envisaged by the founding fathers. The Commission also appears to have ignored that Section 6 of the Prevention of Corruption Act, 1947, which deals with the imperative of the previous sanction of Government in prosecuting a public servant under that Act, in terms, extends the protection to all public servants. It was, thereforee, ignored that the extensive protection provided by Section 6(1)(c) of that Act was a legislative recognition of the need to do away with any distinction of 'class' in public service in the matter of such a salutary safeguard. Be that as it may. the enactment of the Code of 1973 containing Section 197 the terms in which it was suggested by the Commission in the context not only of the law laid down by the Federal Court and the Supreme Court but also of the Commission's understanding of limitation of the .protection to the so-called 'superior class' of public servants leaves hardly any manner of doubt that the protection is confined to only such public servants who are appointed by the President and are, thereforee, not remove- able by any authority subordinate to the President. It would perhaps raise a question if the Section in its present form is hit by Article 14 of the Constitution, notwithstanding, the observations of the Supreme Court in the case of Ram Krishna Dalmia (supra). But the question was not raised before me apparently because its constitutionality Was assumed by the Ii Supreme Court in the case of Nagraj,(9) as indeed, in a number of other cases in which different facets of Section 197 came up for consideration before the highest court. I have, thereforee, no option but to hold that the petitioner, who could be removed by the Director General, All India Radio, was outside the protection, thereby dispensing with the need of any sanction for his prosecution. There is, however, to my mind, a strong case for a fresh look at the Section to bring all government servants, if not all public servants, within the protection. Section 6 of the Prevention of Corruption Act appears, to me to be a safe model for adoption in modifying the provision. As for the belief that it is important categories of public servants performing 'onerous and responsible functions', who need the protection 'from 'false, vexatious or mala fide prosecutions' to ensure that they act fearlessly, it may perhaps be enough to say that with all the talk of corruption and arbitrary exercise of power in high places, it is invariably the public servants at the lower levels who are caught and if some of them could be said to have been framed up, it is this category of public servants which would equally need the protection from false vexatious or mala fide prosecutions. If the protection continues to be limited merely to the important categories, history is a witness to the fact that such protection would be, by and large, superfluous. Such categories perhaps do not ^ need it. They are powerful and influential enough to protect themselves, even if nabbed.
(9) That leaves for consideration the second question, if in preparing false T.A. bill and false supporting vouchers to claim larger amount by Way of T.A. and D.A. than the amount to which the petitioner was entitled, while on duty at an outstation, the petitioner could be said to be 'acting or purporting to act in the discharge of his official duty', within the meaning of sub-section (1) of Section 197. In the way I am bound to look at the first question, the second question really does not survive for, if the petitioner is outside the protection, no sanction Was necessary for his prosecution, irrespective of the nature of the offence alleged to have been committed by him. The question was, however, argued at length on behalf of the petitioner 'and in spite of a number of decisions on the question. its application to the present case, should r be wrong in my conclusion on the first question, would not be free from difficulty. It would, thereforee, be proper that I deal with the question. The language of the Section appears to be plain and docs not seem to admit of any controversy. It is not every offence alleged to have been committed by the protected public servant which requires sanction for its prosecution. It is only an offence allegedly committed by him qua his official duty as public servant as distinct from his unofficial status as a citizen. All that the Section seems to require is a nexus between the offence allegedly committed by the. protected category of public servants and the discharge of his official duty, irrespective of whether he was acting in discharge of such duty or merely bona fide believed that he was acting in discharge of such duty. The construction of the Section has, however, not presented so- much difficulty as the application of the test to different fact situations.
(10) In the case of Hori Ram Singh, (10) which is perhaps the earliest authoritative decision on the application of Section 197 of the Code, Varadachariar J, who delivered the main Judgment, pointed out that the reported decisions until then were not by way means 'uniform'. In most of them, according to the learned Judge, 'the actual conclusion will probably be found to be unexceptionable in view of the facts of each case; but, in some, the test has been laid down interims which it is difficult to accept as exhaustive or correct.' The learned Judge further observed that much the same may be said even of decisions pronounced in England on the language of analogous statutory provisions and reference was made to the case of Booth v. clive (11). The learned Judge pointed out that the decisions in India may be roughly classified as falling into three groups, so far as they attempted to state something in the nature of a 'test'. In one group of cases, it is insisted that there must be something in the nature of the act complained of that 'attaches' it to the official character of the person doing it. The cases in this group are : Sheik Abdul Khadir Saheb (supra), Kamisetty Raja Rao v. Ramaswamy, (12) Amanat Ali v. Emperor; (13) Emperor v. Maung Bo Maung. (14) and Gurushidayya Shantivirayya v. Emperor(15). In the other group of cases, more stress has been laid on the circumstances that the official character or status of the accused gave him the 'opportunity' to commit the offence. In the third group of cases, stress is laid almost exclusively on the fact that it was a 'time' when the accused was engaged in history official duty that the alleged offence was said to have been committed. The learned Judge pointed out that' while the expression 'while acting' in Section 197 has 'been held to lend some support to this view and while' the time 'factor could not be ignored the third group of cases did not seem to be right to make it the test. The learned Judge expressed the view that the first group of cases appeared to have laid down the 'correct test'. It was further observed by the learned Judge that 'an act is not less one done or purporting to be done, in execution of a duty because the officer concerned does it negligently' or is an act which is clearly a dereliction of his duty. The accused in that case was charged with offences under sections 409477-A of the Indian Penal Code in that he dishonestly misappropriated or converted to his own use, certain medicines entrusted to him in his official capacity and in that he willfully and with an intent to defraud omitted -to record certain entries in the stock book. It was held that a reference to the capacity of the accused as a public servant was involved in the charge under Section 477-A. There is an important difference between the two offences' In the case of an offence us 409, it was observed. that 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. In the case u[s 477-A, the official capacity is involved in the .very act complained of as amounting to a crime as the gravamen of the charge is that the accused acted fraudulently in the discharge of his official duty. It was thus held that the content of the Governor was necessary for the institution of proceedings -as 477-A but not us 409 of the Indian Penal Code The test laid down in the case of Hori Ram (supra) was applied by the Federal Court in the case of Lieutenant Hector Thomas Huntley(16).The accused, a Station Master of the East Indian 'Railway was tried and convicted for an offence u/s 161 Indian Penal Code . on the allegation that he had obtained illegal gratification to allot two wagons for dispatch of sheep and goats. On the authority of the decision in the case of Hori Ram Singh (supra), it was held that the act complained of must be an official act and if the act complained of was the act of receiving illegal gratification, 'that surely could not be an act done or purporting to be done in the execution of duty'. The Court quoted with approval the observations of Sulaiman J. in the case of Hori Ram Singh (supra) to the effect that if a public servant accepted as a iew'Kl a bribe in his office, while actually engaged in his official work, he Js not accepting it in his official capacity much less in the execution of any official duty although it is quite certain that he could not have been able to take the bribe unless the were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification.
THE Judicial Committee had occasion to consider the application of Section 197 in the cases of Gill & another v. The King (17), and in the case of Albert West Meads (18). Gill, a public servant and a contractor were charged with being parties to a criminal conspiracy to cheat the government, whereby offences u/s 120B, read with section 420 of the 1. P. C. were alleged to have been committed and in addition each was charged separately u/s 161 of the Code, Gill with taking and the contractor with giving a specified bribe in connection with a particular contract. It was held that 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'. Applying that test, it was held that Gill could not justify the acts in respect Of. which he was charged as acts done by him by virtue of the office that he had and accordingly, no sanction was needed for his prosecution. The decision of the Federal Court in the case of Hori Ram Singh (supra) was approved. The Privy Council put its conclusion thus : The 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. 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. Applying such a test to the present case, Gill could not j.ustify the acts in respect of which he was charged as acts done by him by virtue of his office'. In the case of Albert West Meads (supra), the decision of the Judicial Committee in the case of Gill (supra) as indeed, the decision of the Federal Court in the case of Hori Ram Singh (supra) were applied. The charge in that case was that the appellant acted fraudulently and misapplied money entrusted to his case as a public servant and the question was if these were acts done by him by virtue of the office that he held. The question was answered in the negative.
(11) The Supreme Court had occasion to apply Section 197 of the Code to different fact situations 'to determine if sanction for the prosecution was necessary. In the case of Shreekantiah Ramayya Munipalli(19) a three-Judge Bench of the Court was concerned with an appeal in which three government servants were jointly charged with an offence punishable u/s 5(2) of the Prevention of Corruption Act' and all were further jointly charged with having committed breach of trust in furtherance of common intention of all ujs 409 of' Indian Penal Code . read with Section 34 T.P.C. One of the questions, was if the sanction was necessary. It was pointed out by Bose J, who spoke for the Court, that if Section 197 was construed too nanowly, it can never be applied for it is no part of an official's dirty to commit an offence and never can be. But it is not the duty of an official which has to be examined so much as his act ', 'because an official act can be performed in the discharge of official duty as well as dereliction of it'. The Section has 'content' and its language must be given 'meaning'. It was further observed that the entrustment and [or dominion were in an official capacity and it is equally evident that there could in this case be no disposal, lawful or ortherwise, save by an act done or purporting to be done in an official capacity. thereforee, the act complained of, namely, 'the disposal could not have been done in any other way'. 'If it was innocent, it was' an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act,. namely, officially permitting their disposal; and that he did'. He actually permitted their release and purported to do it in an official capacity, 'and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. thereforee, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered so, if it was official, in the one case, it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it'. Section 197 was, thereforee, held to apply and sanction was found to be necessary, and as there was no sanction, proceedings and the conviction were quashed. 'The earlier decisions of the Federal Court in the case of Hori Ram Singh-(supra) and Lieutenant Hector Thomas Huntley (supra) were referred to .with approval. In the matter of Amrik Singh (20), the matter was considered in the context of charges against a public servant u/s 465 of the Indian Penal Code for forging the thumb-impression of a fictitious person and u/s 409 of the Code for criminal misappropriation of the amount, said to have been paid to such fictitious person by way of wages. No order of the Government had been obtained sanctioning the prosecution. The court noticed that there has been considerable divergence of judicial opinion on the scope of Section 197(1) of the Code and referred to the decision of the Federal Court in the cases of Hori Ram Signh, and [Gill (supra) and] the decision of the Privy Council in the cases of Gill (supra) Heads (supra) and Phanindra Chandra (21), of the Supreme Court in the case of R. W. Mathams' and Sureo Kantia Ramayya Munipalli (supra). Summing up the legal position on the basis of these authorities, it was observed :
'IT is not every offence committed by a public serv.ant 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 sd that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter erf defense on the merits, which would have to be investigated at the trial, and .could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.'
IT was conceded in that case that on the principle enunciated in the above decisions, sanction would be required for prosecuting the appellant u]s 465 as the charge was in respect of his duty of obtaining signatures or thumb-marks of the employees before wages were paid to them. It was, however, contended that misappropriation of funds could under no circumstances be said to be within the scope of the duties of a public servant and, thereforee, no sanction was necessary. Reliance was placed for this contention On the decisions in the case of Hori Ram Singh and A. W. Heads (supra) both of which dealt with the charge of criminal misappropriation. It was, however, held that even when the charge is one of misappropriation by a public servant, ' whether sanction is required or not, will depend upon the facts of each case, and it was- observed 'that whether sanction is necessary to prosecute a public servant on a charge 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 da- ties, then no sanction is necessary.' It was then examined if the acts with which the appellant was charged directly bear on the duties which he had to discharge as a public servant. It was observed that the appellant received the amount alleged to have been misappropriated as Sub-Divisional Officer and it was his duty to pay the amount to the person concerned and take his' signature or thumb-mark in acknowledgement thereof. The appellant claims to have paid the amount and the roll records the payment and there is acknowledgement a thumb-mark. It was further observed that if what appears on the face of the roll is true, then the .acts with which the appellant was charged both within the scope of the duties and can be justified by him as done by virtue of his office. It was accordingly held that sanction was required, for prosecution u/s 409 and absence of sanction was fatal to the maintainability of the prosecution. The conviction was accordingly quashed. In the case of Matajog Dobey (supra), a Constitution Bench of the Supreme Court was called upon inter alia, to consider the nature of the connection between the act and the discharge of official duty. On a review of the various decisions referred to above, it was held that there must be a 'reasonable connection between the act and the discharge of official duty' and the acts' bear such relation to the duty that the accused could lay a 'reasonable but not a pretending or fanciful claim' that he did it in the course of the performance of his duty. The public servants in this case acting pursuant to a search wan ant issued u[s 6 of the Taxation of Income (lnves'tigation Commission) Act, 1947, went to a premises and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case. On being challenged by. the darwan and the proprietor of the respective premises, they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours. Applying the principle of reasonable connection to the facts of the case, it was held that it could still be claimed that what they did was in the discharge of their official duty. The plea that they had a right to get rid of the obstruction then and there by binding down the complainants or by removing them will be mistaken but surely, it could not be said that their act was necessarily mala-fide and so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated. It was, thereforee, observed that they could reasonably claim that what they did was in virtue of their official duty whether the claim is found ultimately to be well-founded or not. In the case of Satwant Singh (23), a Constitution-Bench of the Supreme Court was concerned with the question 'in the context of a charge against Satwant Singh, a Government contractor, that he had committed an offence of cheating u]s 420 of the Indian Penal Code . and that Henderson, a public servant, had abetted him in the commission of that offence by falsely certifying that Satwant Singh's claim in respect of the works done for government to be true, knowing that they were false and had thereby committed an offence punishable u/s 420 r/w (109) of the Indian Penal Code . It was held 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 and offence of cheating or abetment was said to be 'one of such offences. It. was further observed that where a public servant commits an offence of cheating or abets so as to cheat, the offence committed by him is not done 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. It was further deserved that the act off cheating or abetment has no reasonable connection with the discharge of official duty and 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. The observations of the Supreme Court in the case of Amrik Singh and Matajog Dabey (supra) were referred to. A contention was raised in that case that Henderson in certifying the contractor's claim as true was doing an official act because it was his duty either to certify or not to certify a claim as true and that he falsely certified to claim of 'the contractor as true, and that he was acting or purporting to act in discharge of the official B duty. This was overruled on the ground that Henderson was - not prosecuted for any offence concerning an act of certification. He was prosecuted for 'abetting the contractor to cheat' -and it was, thereforee, held that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty and that no sanction was, thereforee, necessary. In the case of Baijnath(24), a three-Judge Bench was concerned with the question in the context of a charge u/s 409 of the Indian Penal Code . and the contention on behalf of the prosecution was that in respect of an offence of criminal breach of trust by a public servant, no sanction was necessary, as such, an offence can only be said to be so committed, because it is no part of the official duty of a public servant to misappropriate money s of his employer. The majority held the view, after a consideration of the earlier decisions, that sanction was not necessary for prosecution u/s 409 of the Code because the act of criminal misappropriation as was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and the offence had no direct connection with the ditties of the appellant as a public servant, the official status only furnished the appellant with an 'occasion' or an 'opportunity' of committing an offence. The majority came to the conclusion that the case fell within the principle laid down by the Court in the case of Satwant Singh (supra). A contention had been raised that the decision in the case of Amrik Singh supported the appellant's case. It was, however, observed that the Court need not examine 'how far the decision in Amrik Singh's cas'e can stand' in view of the earlier decisions of the Judicial Committee and the two subsequent decisions of a larger Bench of . the Court in the case of Om Parkash (25) and Satwant Singh (supra), Sarkar, J. however, entered his dissent and held that the facts of the case appeared to be similar to the case of Amrik Siagh (supra). It was observed that it was impossible to distinguish the present case from that of Amrik Singh and that applying the test laid down by the Privy Council in Gill's case, the necessity for the sanction had to be determined by putting the question if the accused could have reasonably stated that what be had done had been done in the course of his official duty. In view of the decision in Amrik Singh's case, which appeared to have applied a principle deducible from authoritative decision on the question, Sarkar, J. held that the conviction for defalcatio'n of the amount was bad in the absence of the necessary sanction. In the case of Bhagwan Prasad Srivastava, (26) the two-Judge Bench of tie Court was Concerned with a complaint of defamation against a public servant. The court referred to the earlier decisions in the case of Matajog -Dobey, Amrik Singh and Baijnath (supra) and expressed .that view that the principle embodied in the section seemed to be 'well-understood but the difficulty lay in its application to the facts of a given case.' It was observed that whether a particular act is done by a particular person in the discharge of his official duty is 'substantially one of fact to be determined on the circumstances of each case.' On the facts of that Case, it was held that the offence consisted of the vse of defamatory and abusive words and of getting the complainant forcibly pushed out of the operation theatre by a cook. Sanction was said to be unnecessary because there was 'nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was directly connected with the performance of the official duty that without so acting, he could not have properly discharged it.' In the case of Manohar Nath Kaul (27), a two- Judge Bench of the Supreme Court examined the question in the context of a fact situation, which is more or less peri materia with the tact's of the present case. 'The appellant in that case was a Regional officer of the Directorate of Field Publicity of the Government of India. He travelled by air from Srinagar to Delhi to and fro on one occasion and from Srinagar to Jammu to and from on two other occasions by obtaining air tickets in lieu of exchange orders. The cost of tickets obtained by the appellant was debited to the account of the Directorate and under the rules, the appellant was required to .exclude the same from the claim for traveling allowance. On the allegation that the appellant submitted bills, including the air fare and received payment for the same, a prosecution report was submitted against him for an offence of cheating us 420 1PC. 'He appellant claimed that prosecution was not maintainable without prior government sanction. The court held that undoubtedly, the sanction was designed to facilitate an effective and unhampered performance of official duty by public servant by making provision for scrutiny into allegations against him by superior authorities and prior sanction for prosecution as a condition precedent to the cognizance of cases against them so that protection may be available from 'frivolous, vexatious or false prosecutions' for offences alleged to have been committed while acting or purporting to act in the discharge of official duty. On the authority of the decision in the case of Srivastava (supra), it was held that 'umbrella of protection' was available in respect of offences alleged to have been committed while acting or purporting to act in the discharge of official duty. A contention was raised that qua public officer, the appellant submitted the impugned bill and had drawan. the traveling allowance. It was contended that the furnishing of the bills made the drawing of the allowance are 'integrally connected with his status' of being a public servant. The contention was rejected. Reference was made to the decision in the case of Amrik Singh, Satwant Singh, Baijnath (supra) Bakshish Singh (28) and Harihar Prasad (29). Reference was also made to the decision in the case of B. Sahai (30) ami it was held that the rule in Amrik Singh's case laid down the correct test. It was observed that it has not been contended before the Court that official duty of the appellant was to 'draw traveling allowance bills though his status as a public servant authorised him to draw such bills.' 'Drawing of Ta bills', it was pointed out, 'cannot be said to have been directly and reasonably connected with appellant's duty as Regional officer of the Directorate and the official status merely furnished the opportunity for doing the acts which constitute ingredients of the offence.' The protection of the section was, thereforee, denied to the appellant.
(12) What then can be said to bs the true test to determine if a public servant was acting or purporting to act in the discharge of official duty and what is the result of the application of the test to the fact situation in the present case. In the courts below, rival contentions were sought to be buttressed by two conflicting decisions of the Rajasthan High Court and the Jammu & Kashmir High Court each of which, inter alia, relied on the decision of the Supreme Court in the case of Amrik Singh (supra). The Rajasthan High Court also placed reliance on the decision in the case of Matajog Dobey (supra). The High Courts were dealing with almost identical fact situations. Both the cases dealt with submission of a false T.A. bill. In the case of State of Rajasthan vs. Onkar Dass, (31) the learned Single Judge of that Court, relying on the decisions in the cases of Amrik Singh and Matajog Dobey (supra), held that the submission of the T.A. Bill and the drawing of the traveling allowance are acts which are 'directly concerned' with the respondent's official duties while he was Chairman of the Municipal Board, Pokharan, and, therfore, had .the protection of the Section. On the other hand, in the case of Manohar Nath Kaul, (32) the then Acting Chief Justice of the Jammu and Kashmir High Court denied the protection of the provision holding that the crux of the allegation against the accused was that he had overcharged his claim for traveling allowance and 'while it may be his duty to charge T.A. but it could not be said that the duty to charge would include the duty to overcharge.' It was further observed that 'the act of overcharging was no part of the duty of a public servant' and, thereforee, the alleged act constituting the offence could not be said to be 'directly and reasonably relatable to the official duty of the accused.' The decision of the Jammu and Kashmir High Court has since been affirmed by the Supreme Court in the case of Manohar Nath Kaul (27) in the appeal that arose out of former case itself. As has been pointed out above, the Supreme Court affirmed in that case the rule laid down by the Court earlier in the case of Amrik Singh and Satwant Singh (supra). On the facts, it was observed by the Supreme Court that 'it was not contended that the official duty of the appellant was to draw traveling allowance bills even though his status as a public servant authorised him to draw such bills.' It was further observed that 'drawing of T.A. bills cannot be said to have been directly and reasonably connected with appellants duty as Regional Officer of the Directorate and the official status furnished the opportunity for doing the acts which constitute ingredients of the offence.' Counsel for the prosecution relied on this decision as not only crystallizing the test on the basis of some of the earlier decisions of the Supreme Court but also provided the answer to the question, now before me, in the context of a fact situation which was exactly identical to the one in the present case. He, thereforee, urged that I was bound by the decision in this case, both as. to the test and as to the result of its application to the fact situation before me, and, there was, thereforee, nothing left to be done by this Court. Dr.Singhvi, for the petitioner, in his obvious discomfiture, made a veiled suggestion that the decision in the case of Manohar Nath Kaul, required reconsideration in the context of at least earlier decisions on the question by larger Benches of the Court as to the true test as also on the question as to the nexus between the drawing of a T.A. bill and the petitioner's status as a public servant. He, particularly, drew attention to certain observations of the Constitution Bench in the case of Matajog Dobey (supra) which had, in turn, quoted with approval, the observations of Bose, J. in 'the case of Kantiya Ramiya Munipahi (supra), to the effect that 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'. It was urged by learned counsel that when a public servant goes out-station in connection with official work and draws advances by way of T.A. or D.A. subject to submission of a formal T.A. bill, he is under a legal obligation under the rules to submit such a bill to justify the amount drawn or if he claims .entitlement to a larger amount 'to justify the payment of the balance and such an act of the public servant does not cease to be an official act merely because in claiming the amount, he makes an exaggerated claim. It was urged by learned counsel that the expression 'official duty' could not be given a narrow meaning, but must be extended to all acts which a public servant is required to do by virtue 'of ^is official status and if submission of a T.A. bill was an official act of the petitioner, claim of a larger amount than the petitioner was entitled, would nevertheless, be an official act performed in dereliction of official duty though not in its proper discharge. It is no doubt true that the observations of Bose, J. which were approved by the Constitution Bench in the case of Matajog D'obey, lend support 'to .the contention of Dr.Singhvi. It is also true that neither the decision in Matajog Dobey (supra) nor in the case of State Kantiya Ramiya Munipahi (supra) were cited or considered by the Supreme Court in the case of Manohar Nath Kaul. The decision of the Rajasthan High Court, which took s contrary view of the nature of the act in drawing and submitting a false bill, albeit based on cryptic reasoning, was also neither cited nor considered by the Court. There is also considerable force in the contention that a public servant, who has drawn an amount, is under, a 'duty to account for it and in that View of the matter, there was perhaps a clear nexus between the discharge of such duty, whether performed properly or 'in dereliction of it', and the official -status, but it is nevertheless not possible for this court to ignore the decision in the case of Manohar Nath Kaul, both as to the test, and as to the nature of an act of a public servant in drawing T.A. bills, and if the decision in that case deserves to be reconsidered on Ii one aspect or the other, the plea was to be made elsewhere, and I sav so with utmost respect and in all humility. This court is bound by the decision and to. accordingly, answer the second question in the negative.
(13) The petition accordingly fails and is hereby dismissed. The trial court would proceed with the trial with expedition.