Sankarankutty Menon and ors. Vs. Deputy Superintendent of Police, Trichur and ors. - Court Judgment

Raghavan, J.

1. These cases raise an important and interesting question of law regarding the necessity for obtaining sanction of the State Government to prosecute either under Section 132 or under Section 197(1) of the Code of Criminal Procedure.

2. The petitioner in Crl.. B. P. No. 238 of 1957 was charged under Sections 409 and 477A of the Indian Penal Code. He was the Head Accountant-cum-cashier in the Office of the Assistant Supply Officer, Ernakulam and he was entrusted with a sum of Rs. 1,525-8-6 on 16th February 1957, in his capacity as a public servant, for the purpose of disbursing that amount to one Padmanabha Prabhu, who supplied petrol to the Supply Department.

He committed criminal breach of trust with respect to the said amount by dishonestly misappropriating the same or converting it to his own use and also committed falsification of accounts of the above Department by making false entries in the said accounts. On these allegations charges under Sections 409 and 477A of the Penal Code were brought against him.

A preliminary objection was taken before the lower court that, as there was no previous sanction of the State Government, the complaint was liable to he dismissed. The learned Sub-Divisional Magistrate held that no sanction was necessary and the petitioner seeks to revise that order in this Criminal Revision Petition.

3. Crl. Ref. No. 24 of 1958 is by the Additional Sessions Judge of Parur under Sections 215 and 439, Criminal Procedure Code, to have the committal order in Sessions Case No. 43 of 1957 (P. E. No. 2 of 1957 of the Court of the First Class Magistrate, Alwaye) quashed by this Court. In this case the accused, who was a Dy. Ranger in the Forest Department, stood charged under Sections 409 and 477A of the Penal Code, for having released certain logs of timber without depositing the balance price amount to the credit of the Government and falsifying the account of the Timber Depot.

After preliminary enquiry the 1st Class Magistrate committed him to stand his trial under Sections 409 and 466 of the Penal Code. The learned Sessions Judge after considering the case came to the conclusion, that the committal should have been under Sections 409 and 477A instead of Sections 409 and 466, I. P. C. But a preliminary objection having been taken before the learned Sessions Judge that there was no previous sanction of the State Government under Section 197(1) of the Code of Criminal Procedure, the learned Sessions Judge has referred the case to this Court for quashing the committal order.

It may be noted that in this case the sanction to prosecute was subsequently obtained and the same; was placed before the learned Sessions Judge and therefore the further question, whether a sanction obtained subsequent to the commencement of the prosecution is sufficient also arises for decision in this case.

4. Crl. R. P. Nos. 223 and 239 of 1959 arise out of the same case, C. C. No. 236 o[ 1959 on the file of the court o the District Magistrate of Tellichery. One K. P. Balakrishnan filed a complaint before the said court against five Police Officers, that is, one Circle Inspector, two Sub-Inspectors, a Head Constable and a Police Constable, under Sections 120-B, 324 and 147 I. P. C. The allegations in the complaint are that, while the complainant was proceeding along the public road in front of the B. E. M. P. High School, Tellichery, he saw two boys lying in front of a State bus and picketing.

There was a orowd on both sides of the road and the complainant approached the crowd. Then the aforesaid Police Officers and about 50 policemen armed with lathies got down from their vehicles and the Circle Inspector shouted 'beat all rascals', on which the other accused persons and other constables stared beating the people on the road. The complainant was pursued and beaten by the Circle Inspector and by such beating the complainant and others sustained some injuries.

On these allegations the above complaint was filed. The accused Police Officers raised the objection that the complaint should be dismissed in limine, as there was no previous sanction of the State Government under Section 132 Crl. P. C. to prosecute them. The learned District Magistrate held that the question, whether sanction was necessary or not, could be decided only after more reliable evidence was placed before the court and till then the case had to proceed.

The State has filed Crl. R. P. no. 223 of 1959 questioning the correctness of this order and the Police Officers themselves have filed Crl. R. P. No. 239 of 1959 seeking to revise the same order of the learned District Magistrate. Thus Crl. R. P. Nos. 223 and 239 of 1959 arise out of the same case and involve the same questions.

5. Section 197(1) Crl. P. C. lays down that, when any public servant, who is not removable from his office save by or with the sanction of the State 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 cognisance of such offences except with the previous sanction of the State Government. Section 132, Criminal Procedure Code, provides that no prosecution against any person for any act purported to be done under Chapter IX of the Code shall be instituted in any Criminal Court except with the sanction of the State Government. So that, in the former case the public servant) sought to he prosecuted can successfully plead lack of sanction of the appropriate Government, if the offence with which he is charged is alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty and in the latter the person sought to be proceeded against can equally successfully object to the proceedings if the act complained of is one purporting to have been done under Chapter IX of the Code of Criminal Procedure.

6. There are authoritative pronouncements of the Privy Council, the Federal Court and the Supreme Court on this question in several cases.

In Hori Ram Singh v. Emperor, AIR 1939 FC 43, their Lordships of the Federal Court, interpreting the expression 'an act done or purporting to be done in execution of duty as servant of the Crown', occurring in Section 270(1) of the Government of India Act of 1935 observed as follows :

'The test appears to he not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot' be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty so as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be clone in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professess to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting'.

Their Lordships held in that case that an offence under Section 409 would not ordinarily fall within the scope of Section 270(1) of the Government of India Act, but an offence under Section 477A would come within its scope. In H. H. B. Gill v. The King, AIR 1948 PC 128, their Lordships of the Privy Council approved the above decision of the Federal Court in Hori Ram Singh's case, AIR 1939 FC 43 and their Lordships observed at p. 133 of the judgment :

'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.'

This 1ms again been affirmed by the Privy Council in Albert West Meads v. The King, AIR 1948 PC 156, in Phanindra Chandra Neogy v. The King, AIR 1949 PC 117 and in Lumbhardar Zutshi v. The King, AIR 1950 PC 26.

7. Coming to the Supreme Court, there are several cases in which this question has been considered. In R. W. Mathams v. State of West Bengal, AIR 1954 SC 455, the Supreme Court followed the aforesaid Privy Council decisions and held that it was concluded by the said decisions that no sanction was necessary for prosecution on charges of conspiracy and bribery. In Shreekantiah RamayyaMunipalli v. State of Bombay, (S) AIR 1955 SC 287, the following observation occurs :

'Now it is obvious that if Section 197, Crl. P. C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction, of it'.

Their Lordships in that case were considering the requirement of sanction for prosecution under Section 409 I. P. C. and their Lordships further observed :

'Now it is evident that the entruslment and or dominion here were in an official capacity, and it as equally evident that there could in this case be nodisposal, lawful or otherwise, save by an act doneor purporting to be done in an official capacity.

Therefore, 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 accused 2 could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did.' In Amrik Singh v. State of Pepsu, (S) AIR 1955 SC 309, Venkatarama Ayyar, J., observed thus after reviewing the authorities :

'The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Criminal P. C., nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, them sanction would be necessary; and that wouldbe so, irrespective of whether it was, in fact a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, whichmust precede the institution of the prosecution.'

His Lordship further observed :

'In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the facts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then, sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required'.

In Matajog Dobey v. H. C. Bhari, (S) AIR 1950 SC 44, these decisions have been reviewed once again by Chandrasekhara Aiyar, J., and His Lordship observed as follows :

'There must be a reasonable connection between the act and the official duty. It does not mattereven if the act exceeds what is strictly necessary for the discharge of the duty, as this question will ariseonly at a later stage when the trial proceeds on the merits.

What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation'.

It would be of advantage to note one more passage occurring in another part of the same judgment which reads :

'The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.'

In a recent case of the Supreme Court in Satwant Singh v. State of Punjab, AIR 1960 SC 266, their Lordships observed that some offences by their very nature could not be regarded as capable of being committed by public servants, while acting or purporting to act in the discharge of their official duties and their Lordships held that an offence of cheating was one such.

Another decision of the Supreme Court touching this question, is Om Prakash Gupta v. State of U. P., (S) AIR 1957 SC 458, wherein Govinda Menon, J., observed that quite a large body of case law in all the High Courts had held that a public servant committing criminal breach of trust did not normally act in his capacity as a public servant.

8. To sum up the principles of law that emerge from the aforesaid authorities : The act complained of against the official must be an offence. There must be a reasonable connection between the act complained of and the duty of the officer as a public servant, so that, if questioned, the officer can reasonably profess to have done the act in exercise or in purported exercise of his official duty. The act complained of may have exceeded the limits of the official duty, but it still remains to be in exercise or purported exercise of his official duly, if the connection between the act and the official duty is a reasonable one and not merely a fanciful one.

That is, that the official position should not be used as a mere cloak to defend the act complained of. There are some offences which by their very nature are incapable of being committed by public servants, while acting or purporting to act in the discharge of their official duties, e.g., conspiracy, bribery and cheating. An offence under Section 409 of the Penal Code cannot normally be committed by a public servant acting in discharge of his duties or purporting to act in his official capacity.

In such a case the test must be to find out whether, on the facts and in the circumstances of the case, the act complained of is so integrally connected with the duties attaching to the office as tobe inseparable from them, in which case sanction is necessary. Sanction is necessary to prosecute under Section 477-A of the Penal Code, if it is the official duty of the public servant to keep accounts, wherein false entries are made. The need for obtaining sanction may arise at any stage of the prosecution. But prosecution without sanction is bad, as the sanction must precede the institution of the prosecution.

9. In a recent case, Vaidyanatha Ayyer v. State of Kerala, 1961 Ker LT 144 : (AIR 1961 Kerala 175), a Division Bench of this Court, to which one of us was a party, has considered the above decisions and come to similar conclusions.

10. If we now turn to the cases before us in the light of the above principles drawn from the aforesaid discussion of the several authorities, what we find is that sanction is necessary in all of them. All the decisions lay down that sanction is necessary for prosecution under Section 477A, I. P. C. for, falsification of the accounts is done in the purported exercise of the official duty. The only doubt is whether such sanction is necessary for a prosecution under Section 409 I. P. C. also.

There are observations of the Supreme Court in two cases and an observation of the Federal Court in one case referred to above to the effect that, when an official commits an offence under Section 409 I. P. C., he cannot generally be said to be acting in his official capacity. The particular facts of each case have to be looked into to find out whether there is a reasonable connection between the act complained of and his official duty.

In Crl. R. P. No. 238 of 1957 the amount of Rs. 1525-8-6 was entrusted to the petitioner in his official capacity as a public servant and he made false entries in the official records and misappropriated the amount himself. Therefore the entrustment was in his official capacity and the falsification of accounts was also done purporting to act in his official capacity and therefore the misappropriation of the amount had a reasonable connection with his official duty.

As in Amrik Singh's case before the Supreme Court, (S) AIR 1955 SC 309, the petitioner in this case claims to have paid the amount to Padmanabha Prabhu and the accounts of the Supply Department appear to contain an acknowledgment to that effect. In such circumstances, we are of opinion that sanction to prosecute under Section 197(1) Crl. P. C. should have been obtained and in the absence of that the charge has to be quashed.

11. In Crl. Ref. No. 24 of 1958 also it is abundantly clear that sanction is necessary to prosecute under Section 477A I. P. C. In this case the connection between the act complained of as an offence under Section 409 I. P. C. and the official duly of the accused is stronger and more intimate. He has released the timber, which was entrusted to him in his official capacity, without depositing the balance amount due to the Government. This release of timber is an act in the course of his official duty or it is at least an act purported to have bean done in his official capacity. Therefore sanction to prosecute should have been obtained in this case also.

12. The further question that arises for adjudication in this case is whether obtaining a sanction subsequently will validate the proceeding, A mere reading of Section 197(1) Crl. P. C. clearly indicates that what is contemplated by the section is a previous sanction and the court shall not take cognizance of an offence without such previous sanction. As observed by Venkatarama Ayyar, J., in Amrik Singh's case, (S). AIR 1955 SC 309, the sanction must precede the institution of the prosecution. Therefore we are constrained to accept the reference and quash the committal.

13. In Crl. R. P. Nos. 223 and 239 of 1959 the sanction that has to be obtained is one under Section 132 of the Code of Criminal Procedure. The learned District Magistrate allowed the proceedings to go on, observing that the question of sanction could he gone into at a later stage. For this the learned District Magistrate has relied on a passage extracted in an earlier part of our judgment front (S) AIR 1956 SC 44, wherein His Lordship Chandrasekhara Aiyar, J. observed that the question whether sanction was necessary or not might have to be determined from stage to stage.

In that case His Lordship did not lay down that the question of sanction should not be decided at the earliest stage. His Lordship observed that such a question might arise at any stage, that is at a later stage also, and simply because it was not brought to the notice of the court at the earliest stage the necessity for sanction should not be discarded. Further, in Yesudasan v. Guruswamy, AIR 1957 Mad 555, a Division Bench of the Madras High Court, following a previous decision of Burn, J. in Schamnad v. Rama Rao, AIR 1933 Mad 268, and three other decisions of the same court, held that the protection conferred by Section 132 would be rendered nugatory, if the onus was to be thrown on the accused to prove in the trial that they acted under Chapter 9, Crl. P. C.

Their Lordships further held that it could not be said that to find out whether the accused acted under Chapter 9 Or not, only the complaint and the sworn statement should be looked into and not any other circumstances or documents, for, by appropriate assertions in the complaint and the sworn statement it would be possible for the complainant to deprive the police officers of the protection that the legislature had given them under Section 132 of the Code.

14. In the present case even the allegations, in the complaint disclose that there was picketing by two boys by lying flat in front of the State, Transport bus, that there was a crowd collected at the scene and that the complainant was in the crowd. In such circumstances the acts of the police officers are only acts purporting to have been done under Chanter 9 of the Code of Criminal Procedure and in that view we are inclined to hold that sanction is necessary in this case also.

15. The result is we allowed Crl. R. P. Nos.238 of 1957 and 223 and 239 of 1959. In Crl.R. P. No. 238 of 1P57 we quash the charge and inCrl. R. P. Nos. 223 and 239 of 1959 we quash thecomplaint We also accept the reference in Crl.Ref. No. 24 of 1958 and quash the committal.