SAMBHOO NATH MISRAversusSTATE OF U.P. AND ORS.

                       SAMBHOO NATH MISRA                                        A
                                      v.
                        STATE OF U.P. AND ORS.

                             MARCH 14, 1997

            [K. RAMASWAMY AND G.T. NANAVATI, JJ.J                                 B

      Code of Criminal Procedure, 1973 :

       S. 197-Sanction for prosecution of public se1vant-Complaint against
 Govemment servant for offences u/ss. 409, 420 IPC etc. alleging that he C
fabricated signatures of complainant, withdrew and misappropriated the
amount due to complainant-Magistrate dismissed the complaint holding that
sanction u/s 197 was iwt obtained-High Cowt upheld the order holding that
the offence alleged to have been committed by the employee was related with
the discharge of his official duty-Held, it is not the official duty of the public
servant to fabricate false record and misappropriate public funds in fur- D
therance or in discharge of his official duties-Discharge of official duty is not
integrally connected nor is it inseparably interli11ked with the c1ime committed
in the course of same tra11sactio11--0rder of Magistrate dismissing the com-
plaint is set aside-Complaint stands restored-Magistrate would deal with
the case· 011 merits.                                                              E
      Hari Ram v. Emperor, 1939 F.C.R. p. 159; Orill's case, 1948 Law
Reporter 75 I11dia11 Appeal 41 and B. Saha v. M.S. Kochhar, (1979) A.C.C.
(16) 318, cited.

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                        F
318 of 1997.

     From the Judgment and Order date<l 31.7.95 of the Allahabad High
Court in €rl. R. No. 985 of 1993.

      P.N. Singh, Mohan Pandey for the Appellant.                                G
      M.C. Dhingra, Kamakshi Singh Mehlwal for the Respondents.

      The following Order of the Court was delivered :

      Leave granted. We have heard learned counsel on both sides.                H
                                1139
    1140                  SUPREME COURT REPORTS                    [1997] 2 S.C.R.

A         This appeal by special leave arises from the judgment and order of
    the learned Single Judge of Allahabad High Court, made on September
    31, 1995 in Criminal Revision No. 985 of 1993.

          The appellant had laid a private complaint against R.D. Tripathi, the
    second respondent, for offences under Section 409, 420, 465, 468, 477A and
B
    109 I.P.C., after examination, alleging that the second respondent and the
    Cashier had fabricated his signatures, drawn and misappropriated and
    amount of Rs. 443.90 which was due and payable to him. On the basis
    thereof, after recording his evidence and also of the court witness under
    Section 202 Cr. P.C. 1973, the Magistrate dismissed the complaint holding
c   that the sanction under Section 197 of the Cr. P.C. was not obtained.
    Aggrieved by the order, the appellant went in revision before the High
    Court. The High Court recorded the finding that the second respondent
    was discharging his duties as a Government servant and was alleged to have
    misappropriated the amount in question by forging the signature of the
D   appellant in the payment register. The High Court further observed that
    "the offence alleged to have been committed by the respondent is related           '
    in some manner with the. discharge of his official duties. There is
    reasonable connection between t.he act and discharge of his official duty.
    Under these circumstances, sanction under Section 197, Cr. P.C., is neces-
    sary before procescution of this accused". In support of it, the learned
E   Judge relied upon Hari Ram v. Emperor, (1939) F.C.R. p. 159, on·ll's case
    [1948 Law Reporter 75 Indian Appeal 41] and the case of B. Saha v. M.S.
    Koch/tar, (1979) A.C.C. (16) 318. The question is: whether the view taken
    by the trial Court as upheld by the High Court for the aforesaid reason is
    correct is law?
F
           Section 197 (1) postulates that "when any person who is 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
G   sanction of the appropriate Government/authority". The essentiiµ require-
    ment postulated for sanction to prosecute the public servant is that the
    offence alleged against the public servant must have been done while acting
    or purporting to act in the discharge of his official duties. In such a
    situation, it postulates that the public servant's act is in furtherance of the
                                                                                      --
                                                                                       f
H   performance of his official duties. If the act/omission is integral to perfor-
r
'
                    S.N. MISRAv. STATE [K.RAMASWAMY,J.]                       1141

    mance of public duty, the public servant is entitled to the protection under· A
    Section 197 (1) of Cr. P. C. without previous sanction, the complaint/charge
    against him for alleged offence cannot be proceeded with in the trial. The
    sanction of the appropriate Government or competent authority would be
    necessary to protect a public servant from needless harassment or prosecu-
    tion. The protection of sanction is an assurance to an honest and sincere
    officer to perform his public duty honestly and to the best of his ability.
                                                                                  B
    The threat of prosecution demoralises the honest officer. The requirement
    of sanction by competent authority of appropriate Government is an as-
    surance 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. Public duty            c
    may provide him an opportunity to commit crime. The Court to proceed
    further in the trial or the enquiry, as the case may be, applies its mind and
    records finding that the crime and the official duty are not integrally
    connected.
                                                                                      D
           The question is : when the public servant is alleged to have com-
    mitted the offence of fabrication of record or misappropriatio,n of public
    fund etc., can he be said to have acted in discharge of his 6fficial duties?
    It is not the official duty of the public servant to fabricate the false record
    and misappropriate the public funds etc. in furtherance of or in the
    discharge of his official duties. The official capacity only enables him to       E
    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 same transaction, as was believed by the
    learned judge. Under these circumstances, we are of the opinion that the
    view expressed by the High Court as well as by the trial Court on the             F
    question of sanction is clearly illegal and cannot be sustained.

          The learned counsel for the respondent, Mr. Dhingra, has contended
    that the Magistrate came to the conclusion that it was not a part of the
    duty of the respondent to deal with either the preparation of the record or       G
    payment thereof. It was the duty of the cashier and therefor, the learned
    Magistrate was right in his conclusion that the respondent had not com-
    mitted any offence. We desist to go into that aspect. It is made clear that
    we have not expressed any opinion on merits of the case. We have only
    dealt with the contention as the need for sanction and as to whether the
    sanction becomes necessary under Section 197 (1) of Cr. P. C.                     H
    1142                 SUPREME COURT REPORTS                 [1997] 2 S.C.R.

A         The appeal is accordingly allowed to the above extent. The order of
    the Magistrate dismissing the complaint is set aside. The complaint stands
    restored. The Magistrate is directed to proceed further in accordance with
    the law and deal with the case on merits.

    R.P.                                                     Appeal allowed.