PUNJAB STATE WAREHOUSING CORP.versusBHUSHAN CHANDER & ANR.

                         [2016] 4 S.C.R. 537



             PUNJAB STATE WAREHOUSING CORP.                               A
                                  v.
                 BHUSHAN CHANDER & ANR.
                 (Criminal Appeal No. 159 of2016)
                           JUNE29,2016                                    B
       [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.)
      Code of Criminal Procedure, 1973 - s. 197 - Sanction before
prosecution ofpublic .servant- u/ss. 409146714681471 of Penal Code
- Conviction by trial court as well as appellate court - In revision,
High Court held the trial vitiated.on account of non-obtaining of         c
sanction u/s.197 - On appeal, held: In order to invoke s.197, there
has to be a, reasonable connection between the omission or
commission and the discharge of official duty - In the facts of the
case, the alleged criminal breach of trust cannot be said to have
been committed while in public service - No official can put forth a
claim that breach of trust is connected with his official duty - Hence,   D
in the present case sanction uls. 197 was not necessary.
      Allowing the appeal, the Court
      HELD: 1. No sanction is needed to launch the prosecution
for the offence punishable under Section 409 IPC. There has to
                                                                          E
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 .. [Para 22)
[552-A-B)                                                                 F
      Matajog Dube v. HC. Bahri AIR 1956 SC 44 : 1955
      SCR 925 - followed.
      Om Prakash Gupta v. State of U.P. AIR 1957 SC 458 :
      1957 SCR 423; P. Arulswa111i v. State of Madras AIR
      1967 SC 776 : 1967 SCR 201 - relied on.                             G
      Shreekantiah Ramayya Munipalli v. State of Bombay
      AIR 1955 SC 287 : 1955 SCR 1177; A111rik Singh v..
      State of Pepsu AIR 1955 SC 309 : 1955 SCR 1302; R.
      W. Mathams v. State of Wesi Bengal AIR 1954 SC 455
      : 1955 SCR 238 - referred to.    ·                                  H
                              537
538            SUPREME COURT REPORTS                      [2016) 4 S.C.R.


A           Hori Ram Singh v. Emperor 1939 FCR 159 (AIR 1939
            FC 43); !f.HB. Gill v. The KinR 1948 FCR 19 : (AIR
            1948 PC 128); Albert West Meads v. The Kin,; AIR 1948
            PC 156 - referred to.          ·
            2. The issue in the present case was basically entrustment
      and missing of the entrusted items. There is no dispute that the
B
      prosecution had to prove the case. But the public servant cannot
      put forth a plea that he was doing the whole act as a public servant.
      Therefore, it is extremely difficult to appreciate the reasoning of
      the High Court that the alleged criminal breach of trust was
      committed while he was in public service. [Para 22] (552-C-D]
c           3. The High Court had o.bserved 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 Cr.P.C for launching the prosecution for the offence
D
      under Section 409 IPC is a condition precedent. The approach
      and the analysis are absolutely fallacious. No official can put forth
      a claim that breach of trust is connected with his official duty. It
      cannot be said that in the obtaining factual matrix, sanction under
      Section 197 CrPC was necessary. (Paras 22 and 23] (552-D-F;
E     553-A]
             4. The respondents arc 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. [Para
      28] (554-D-E]
F
             State of Maharashtra v. Dr. Budhikota Subbarao 1993
             (2) SCR 311 : (1993) 3 SCC 339; Shambhoo Nath Misra
             v. State of U.P. 1997 (2) SCR 1139 : (1997) 5 SCC
             326; State of Kera/a v. V. Padmanabhan Nair 1999 (3)
             SCR 864 : (1999) 5 SCC 690; State of HP. v. M.P.
G            Gupta 2003 (6) Suppl. SCR 541 : (2004) 2 sec 349;
             Parkash Singh Badal and another v. State of Punjab
             and others 2006 (10) Suppl. SCR 197 : (2007) 1 SCC
             1; Choudhury Parveen Sultana v. State of West Bengal
             and another 2009 (1) SCR 99 : (2009) 3 SCC 398;
             Bhagwan Prasad Srivastava v. N.P. Mishra 1971 (1)
H
PUNJAB STATE WAREHOUSl).IG CORP. v. BHUSHAN               539
             CHANDER & ANR.

 SCR .317 : (1970) 2 SCC 56 - relied on.                  A
 Rakesh Kumar Mishra v. State of Bihar and others
 (2006) 1 SCC (Cri) 432; Sankaran Moitra v. Sadhna
 Das and another (2006) 2 SCC (Cri) 358; Om Kumar
 Dhankar v. State of Haryana (2007) 3 RCR (Criminal)
 496; Dr. Lakshmansingh Himatsingh Vaghela v. Naresh      B
 Kumar Chadrrashanker Jah 1990 (3) SCR 511 : (1990)
 4 SCC 169; N. Bhargavan Pillai (dead) by Lrs. and
 another v. State of Kera/a (2004) 2 Cri. CC 575; State
 of U.P. v. Paras Nath Singh 2009 (8) SCR 85 : (2009)
 6 SCC 372; Raghunath Anant Govilkar v. State of
 Maharashtra 2008 (2) SCR 580 : (2008) 11 SCC 289;        c
 Choudhury Parveen Sultana v. State of West Bengal
 2009 (1) SCR 99 : (2009) 3 SCC 398; Prakash Singh
 Badal v. State of Punjab (2007) 1 RCR (Criminal) 1;
 Nirmal Singh Kah/on v. State of Punjab (2008) 2 RCR
 (Criminal) 208; Bakshish Singh Brar v. Gurmel Kaur       D
 1988 (1) RCR (Criminal) 35; P.K. Pradhan v. State of
 Sikkim 2001 (3) RCR (Cri.)' 835 (SC); B. Saha v. MS.
 Kochar 1980 (1) SCR 111: (1979) 4 SCC 177;
 Phanindra Chandra v. The King AIR 1949 PC 117;
 Md. Hadi Raja v. State of Bihar AIR 1998 SC 1945 :
 1998 (3) SCR 22; Shreekantiah Ramayya Munipalli v.        E
 State of Bombay AIR 1955 SC 287 : 1955 SCR 1177;
 Baijnath v. State of MP. AIR 1966 SC 220 : 1966 SCR
 210; H.H.B. Gill v. The King 1948 FCR 19 : (AIR 1948
 PC 128); Amrik Singh v. State of PEPSU AIR 1955 SC
 309 : 1955 SCR 1302 - referred to.                        F
                   Case Law Reference
 (2006) 1 sec (Cri) 432         referred to    Para3
 (2006) 2 sec (Cri) 358          referred to   Para3
 (2007) 3 RCR (Criminal) 496 referred to        Para3
                                                          G
 1990 (3) SCR 511                referred to    Para3
 (2004) 2 Cri. CC 575            referred to    Para3
 2009 (8) SCR 85                 referred to    Para3
 2008 (2) SCR 580                referred to    Para3
                                                           H
540           SUPREME COURT REPORTS                        [2016] 4 S.C.R.


A          2009 (1) SCR 99                   referred to     Para3
           (2007) 1 RCR (Criminal) 1         referred to     Para4
           (2008) 2 RCR (Criminal) 208 referred to           Para4
           1988 (1) RCR (Criminal) 35        referred to     Para4
B          1967 SCR 201                      relied on       Para4
           1955 SCR 925                      followed        Para4
           2001 (3) RCR (Cri.) 835 (SC) referred to          Para4
            1?80 (1) SCR 111                 referred to     Para4
            1955 SCR 1177                    referred to     Para9
c
            1955 SCR 1302                    referred to     Para9
            1939 FCR 159 (Am 1939 FC 43) referred to           Para 11
            1948 FCR 19 : (Am 1948 PC 128) referred to Para 11
            AIR 1948 PC 156                  referred to     Para 11
D
            AIR 1949 PC 117                  referred to     Para 11
            1955 SCR 238                     referred to     Para 11
            1957 SCR 423                     relied on       Para 12
            1966 SCR 210                     referred to     Para 13
 E
            1?93 (2) SCR 311                 relied on       Para 17
            1997 (2) SCR 1139                relied on       Para 19
            1999 (3) SCR 864                 relied on       Para 21
            2003 (6) Suppl. SCR 541          relied on        Para 21
 F          2006 (10) Suppl. SCR 197         relied on        Para 21
            2009 (1) SCR 99                  relied on       Para 21
            1?71 (1) SCR 317                 relied on        Para 21
            1998 ( 3 ) SCR 22                referred to      Para 21
 G          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 159 of2016.
            From the Judgment and Order dated 05.05.2011 in Criminal
      Revision No. 359 of2001 passed by the High Court of Punjab & Haryana.
            A. P. Dhamija, Sarad Kumar Singhania, Advs. for the Appellant.
H
     PUNJAB STATE WAREHOUSNG CORP. v. BHUSHAN                                 541
                  CHANDER & ANR.

     V. Madhukar, AAG, Punjab, Chander Shekhar Ashri, Ms. An vita              A
Cowshish, Kuldip Singh, Arun Bhardwaj, Ms. Neha Garg, Ronak
Karanpuria, Jai Wadhwa, Advs. for the Respondents.
      The Judgment of the Court was delivered by
       DIPAK MISRA, J. 1. The singular question that has emanated
in this appeal, by special leave, is whether the High Court has correctly      B
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             c
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 deservecl to be set aside ..
       2. As far as the factual narration is concerned, suffice it to state    D
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 4 7 I 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           E
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        F
bring home the guilt against the accused and accordingly sentenced him
to suffer rigorous imprisonment for three years under Section 467 and
409 IPC and two years under Section 468/4 71 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        G
the evidence on record, concurred with the ponviction 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               H.
542             SUPREME COURT REPORTS                          [2016] 4 S.C.R.


A     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 Maltarashtra v. Dr. Budltikota Subbarao', Rakeslt Kumar
      Misltra v. State of Biliar and otlters", Sankaran Moitra v. Sad/ma
      Das and anotlter', Om Kumar Dhankar v. State of Haryana•, the
B
      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. Lakshmansin1:h Himatsin1:h Va1:1te/a v. Nareslt Kumar
c     Cltadrrasltanker Jah;, N. Blwrgawm Pillai (dead) by Lrs. and
      another v. State of Kerala 6 , State of U.P. v. Paras Nath Singlt 7 ,
      Raghunatlt Anant Govilkar v. State of Maltarashtra 8 and Choudhury
      Paryeen Sultana v. State of West Bengal'.
              4. The learned Single Judge referred to the charges framed under
D     Section 409 and 467 IPC. He also referred to the authorities in Prakash
      Sinxli Badal v. State of Punjab' 0 , Nirmal Singh K(thlon v. State of
      Punjab 11 , Om Kumar Dltankar (supra) and Baksllish Singh Brar v.
      Gurmel Kaur'" 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
E     been committed by them. The learned Single Judge referred to P.
      Arulswami v. State of Madras 13 , Matajog Dube v. H.C. Bahri'", P.K.
      Pradhan v. State of Sikkim';, reproduced a passage from B. Saha v.
      M.S. Kochar 16 , and came to hold as follows:-
      ' o993) 3 sec 339
      '(2006) 1 sec (Cri) 432
F     '(2006) 2 sec (Cri) 358
      '(2007) 3 RCR (Criminal) 496:
      '(1990) 4 sec 169
      6
         (2004) 2 Cri. CC 575
      1
         (2009) 6 sec 372
      • (2008) 11 sec 289
G     • (2009) 3 sec 398
       '" (2007) I RCR (Criminal) 1
      11 (2008) 2 RCR (Criminal) 208

      " 1988 (I) RCR (Criminal) 35
      "AIR 1967 SC 776
      "AIR 1956 SC 44
      '' 2001 (3) RCR (Cri.) 835 (SC)
H       ' <1979) 4 sec 177
      1
     PUNJAB STATE W AREHOUSI"JG CORP. v. BHUSHAN                               543
          CHANDER & ANR. [DIPAK MISRA, J.]

      "So far as the commission of offence in this case is concerned,          A
      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
                                                                               B
      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".
       5. After so stating, the revisional court distinguished the decision     c
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,                D
      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          E
      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
      ofhis official duty. In discharge of his official duty, the petitioner
      was required to protect stock, which he failed to do so and so he         F
      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/              G
      468/4 71 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 !PC and
      it would clearly indicate that these offences could not be separately
      treated or dealt with. Requirement of obtaining sanction would            H
544            SUPREME COURT REPORTS                           [2016] 4 S.C.R.


A           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
B     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.
c          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
D           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 LokayuktasAct, 2013-
E           (a) in the case of a person who is employed or, as the case may
            be, was atthe 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,
F
            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 (I) of Article 356 of the
            Constitution was in force in a State, clause (b) will apply as if for
G
            the expression 'State Government' occurring therein, the
            expression 'Central Government' wereoSubstituted.
             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
H
     PUNJAB STATE W AREHOUSDJG CORP. v. BHUSHAN                              545
           CHANDER & ANR. [DIPAK MISRA, J.]

      Section I 66-A, Section 166-B, Section 354, Section 354-A, Section     A
      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            B
      Union while acting or purporting to act in the discharge of his
      official duty, except with the previous sanction of the Central
      Goyernment."
       9. In Matajog Dube (supra), certain complaints were alleged
against the authorized officials on the ground that the officials had         c
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         D
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        E
of this Court in Shreekantiah Ranwyya Munipalli v. State ofBombay' 7
and Amrik Singh v. State ofPepsu 18 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     F
      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 coricerned with the said       G
aspects in the present case.
     11. In Arulswami (supra), the President of a Panchayat Board
was convicted under Section 409 !PC by the High Court which had
17
  AIR 1955 SC 287
" AIR 1955 SC 309                                                             H
546            SUPREME COURT REPORTS                           [2016] 4 S.C.R.


A     overturned the decision of the lower court. It was ;:irgued before the
      High Court that the prosecution was not maintainable for want of sanction
      by the State Government under Section I 06 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
B
      and further that the sanction of the Collector was sufficient in law. That
      apart, this Court posed the question whether the sanction of the
      Government under Section I 06 of the Madras Act was necessary for
      the prosecution of the appellant for the offence under Section 409 !PC.
      To appreciate the c0ntention raised, the Court referred to Section 197
c     CrPC. The three-Judge Bench referred to the decisions in Hori Ram
      Singh v. Emperor' 9 and H.H.B. Gill v. T!te Kinf(co. 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. Tlte Kin!(c',
D
      Pltanindra Chandra v. The KinfP and R. W. Matlutms v. State of
      West BengaP and eventually held:-
            "It is not therefore every offence committed by a public servant
            that requires sanction for prosecution under S. 197( I) of the
            Criminal Procedure Code; nor even every act done by him while
E
            he is actually engaged in the performance of his official duties;
            but ifthe 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, then sanction would be necessary. It is the
            quality of the act that is important and if it falls within the scope
 F          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".
 G           12. The Court while arriving at the said conclusion also placed
      19
         !939 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
H
        PUNJAB STATE WAREHOUSNG CORP. v. BHUSHAN                                547
             CHANDER & ANR. [DIPAK MISRA, J.]

reliance on Om Prakash Gupta v. State of U.P.c• and ultimately came             A.
to hold that the sanction of the Government is not necessary for
prosecution of the accused under Section 409 IPC..
       I 3. The aforesaid two authorities make it clear that no sanction is
needed to launch the prosecution forthe offence punishable under Section
409 IPC. As we notice from the impugned judgment, the learned Single            B
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
Slireekantiali Ramayya Munipalli (supra). The said order was
                                                                                c
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 !PC because they were certainly not acting
in the discharge of their official duties, when they misappropriated the        D
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. Ifthe said words are construed
too narrowly, the section will be rendered altogether sterile, for, "it is no    E
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              F
import of these words lies between these two extremes. While on the
one hand, it is not every offence committed by a public servant while
engaged in the performance of his official duty, which is entitled to the
protection of Section 197(1 ), an act constituting an offence, directly and
reasonably connected with his official duty will require sanction for
prosecution under the said provision. The Court referred to the                  G
observations ofRamaswami, J., in [Ja(jnatfl v. State o.fM.P.c 5, which is
to the following effect:-                             ·

24
      AIR I 957 SC 458
 25
      AIR 1966 SC 220
                                                                                 H
548             SUPREME COURT REPORTS                              [2016] 4 S.C.R.


A           "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 C.riminal 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
B     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, color of office
c     cannot be answered hypothetically and would depend on the facts of
      each case. The Court referred to the decisions in Hori Ram Singi1
      (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
D     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
E     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 thatthe seizure of the goods by the
      appellants being entrusted with the goods or dominion over them was an
 F    act committed by them 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
G     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
H     (supra) and_ th~reafter stated thus:-
     PUNJAB STATE WAREHOUSI"IG CORP. v. BHUSHAN                                 549
           CHANDER & ANR. [DIPAK MISRA, J.]

      "This, however, should not be understood as ari invariable                A
      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,
                                                                                B
      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".
      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:-                      c
      "There are several decisions of this Court, such as, Om Prakash
      Gupta v. State of U.P.; Baijnath v. State of MP. (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            D
      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         E
      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 Maltaraslttra v. Dr. Budltilota Subbarao 27, the          F
Court referred to the authority in B. Salw (supra), Aru/swami (supra)
and stated that the concept of sanction has been widened by extending
protection to even 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    G
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
"(1972) 3 sec 89
"< 1993) 3 sec 339
                                                                                H
550             SUPREME COURT REPORTS                            [2016] 4 S.C.R.



A     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
B           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
c           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 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
D     duty or duty that has been done has the colour of office.
             19. In Slwmb/100 Nath Misra v. State of U.P.~ 8 , 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 I 09 IPC. The learned Magistrate had dismissed the complaint holding
E     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. Salta (supra) and Gill's case. The Court observed that the
      requirement of the sanction by competent authority or appropriate
F     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 the case may be, it has to apply its mind and
      record a finding that the crime and the official duty are not integrally
G     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. m
H     "(1997) s sec 326
     PUNJAB STATE WAREHOUSNG CORP. v. BHUSHAN                                   551
          CHANDER & ANR. [DIPAK MISRA, J.]

      furtherance of or in the discharge of his official duties. The official   A
      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
                                                                                 B
      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 Kera/a v. V. Padmanabilan Nai~ 9 it has been              c
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 ofH.P. v. M.P. Gupta30 • In Parkaslt Singlt Badal and another
v. State of Pun]ab and otlters3 ' it has been ruled that the offence of
cheating under Section 420 or for that matter offences relatable to              D
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 Cltoudlmry              E
Parveen Sultana v. State of West Bengal and anotlter3' wherein the
Court referred to the authority in Blwgwan Pnisad Srivastava v. N.P.
Mishra 33 and ruled thus:-
      "12. It was also observed in Bhagwan Prasad Srivastava (supra)
      that Section 197 has been designed to facilitate effective and             F
      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           G
      public servant in the discharge of his official duties is substantially
" ( 1999) s sec 690
'" (2004 l 2 sec 349
" (2007) 1 sec 1
" (2009) 3 sec 398
"(1970) 2 sec 56                                                                 H
552              SUPREME COURT REPORTS                             [2016) 4 S.C.R.



A             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
B       under the colour of the office held by the official. If the acts omission or
        commission is totally aliert to the discharge of the official duty, question
        ofinvoking 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 )udge has placed
        reliance on the authority in B. Salta's (supra). The conclusion is based
c       on the assumption that the allegation is that while being a public servant,
        th~ 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
        entftftltfnent and missing of the entrusted items. There is no dispute that
D       the prosecution had to prove the case. But the public servant cannot put
        forth a plea that he was doing 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 Cr PC is
 E      not necessary but when the said offences are interlinked with an offence
        under Section 409 IPC sanction under Sectiqn 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
 F      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. Salta
        (supra) has distinguished in Sltreekallfiah Ramayya Munipalli (supra)
        keeping in view the facts of the case. It had also treated the ratio in
        Amrik Sing/I (supra) to be confined to its own peculiar facts. The test
G        to be applied, as has been stated by Chandrasekhara Aiyar, J. in the
        Constitution Bench in Matajog Dube (supra) 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
H        reasonably claiin, that what he does, he does in virtue of his office.
     PUNJAB STATE WAREHOUSNG CORP. v. BHUSHAN                                    553
          CHANDE&& ANR. [DIPAK MISRA, J.]

       23. Tested on the touchstone of said principles, it cannot be said        A
that in the obtaining factual matrix, sanction under Section 197 CrPC
was necessary. We are compelled to obs_srve that the High Court should
have been ~ore vigilant in understanding the ratio qf ~he decisions of
this Court.
       24. Another line of argument was advanced on behalf of the                B
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 Laksltmansinglt
Himatsinglt Vagltela (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        c
the case of the higher ranks should the sanction of the government to
their prosecution be 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:-                   D
       "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          E
       to an office for exercising functions under a particular statute will
       not alter his status as an eniployee of the local authority".
       25. In the said case, the appellant was admittedly a laboratory
official in the ser¥ice and pay of Municipal Corporation ofAhmedabad.
His appointment as Public Analyst by the Government, as held by this              F
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. Stltte of Bilwr3~ the question arose               G
whether Section 197 CrPC was applicable for 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
oflndia. The Court referred to Section 197 Cr PC, noted the submissions
" AIR 1998 SC 1945
                                                                                  H
554            SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A     and eventually held that the protection by way of sanction under Section
      197 Cr PC 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.
B            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
c     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.
             28. In view of the aforesaid analysis, the irresistible conclusion is
      that the respondents are not entitled to have the protective umbrella of
D     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
 E    with law.
      Kalpana K. Tripathy                                          Appeal allowed.