Madhya Pradesh High Court
Ramgopal vs The State Of Madhya Pradesh on 16 August, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
Cr.R. No.-459/2019
2 Cr.R. No.-459/2019
THE HIGH COURT OF MADHYA PRADESH JABAPLUR
Cr.R. No. 459/2019
Ramgopal
Vs
State of M.P.
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Shri Sankalp Kochar, Advocate for the applicant.
Shri S.B. Agnihotri, GA. for the respondent-State.
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ORDER
(16.08.2019) This revision petition under Section 397/401 of Cr.P.C. has been preferred by the petitioner being aggrieved by the order dated 24.11.2018 in S.T. No. 245/13 passed by 2nd ASJ, Begumganj, Distt.-Raisen, M.P. whereby the court has rejected the application under Section 197 Cr.P.C. filed by the petitioner.
2. According to petitioner, complainant has filed a complaint on 13.03.2012 stating that the petitioner and other co-accused Bhagwan Singh were posted as, Branch Manager and Assistant Account Officer respectively in District Cooperative Rural Bank, Branch Kundni during the period from 2002 to 2010 and during the said period, they had released the loan in the name of the beneficiaries and embezzled an amount of Rs. 42,62,510/-. The allegation against the petitioner is that by making such embezzlement with other co- accused person they have caused financial loss to the Bank. The said allegation 3 Cr.R. No.-459/2019 has been leveled against the applicant on the basis of audit report. The charge- sheet has also been filed by the police for the offence punishable under Section 409, 420, 34 of I.P.C. During trial, petitioner has filed an application under Section 197 Cr.P.C. stating that the petitioner was posted as Branch Manager and being a government employee, he is entitled to get the protection of Section 197 Cr.P.C. The prosecution did not get the sanction under Section 197 Cr.P.C., which is mandatory to prosecute the public servant. Apart from that, under M.P. Cooperative Society Act, if any loss is occurred to Bank, same can be recoverable and for which criminal case cannot be proceeded directly. The learned lower court has given its finding that primafacie it appears that due to some financial irregularities made by the petitioner and other co-accused person, the Bank incurred loss of Rs. 1,02,29,500/- and the act of the petitioner is not the part of the discharge of their duty, thus, the provision of Section 197 is not applicable in the present circumstances. The court has rejected the application.
3. Learned counsel for the petitioner submits that the learned lower court erred in rejecting the application under Section 197 Cr.P.C., as it clearly shows that the actions taken by the petitioner while discharging his official duties. The learned trial court did not consider the law settled in this regard by the Hon'ble Apex Court as well as this High Court. In support of his contention, he has relied upon the pronouncement of Hon'ble Apex Court, which are mentioned as under:
4 Cr.R. No.-459/2019
(1) N.K. Ganguly Vs. Central Bureau of Investigation, New Delhi reported in (2016) 2 SCC 143.
(2) Devinder Sing and others Vs. state of Punjab throuhg CBI reported in (2016) 12 SCC 87
4. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the petitioner and argued that there is primafacie sufficient material available on the record to constitute the aforesaid offences against the petitioner. The allegation against the present petitioner for embezzlement of huge amount of rupees more than one crore, thus, the act of the petitioner does not come under the ambit of Section 197 Cr.P.C. The learned trial court does not make any error in rejecting the application filed by the petitioner in this behalf.
5. Heard arguments of both the parties and perused the case.
6. Before embarking on the facts of the case, it would be appropriate to first read the relevant provision of Cr.P.C.. Section 197 of Cr.P.C. is quoted as under:-
"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;5 Cr.R. No.-459/2019
(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: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government (3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted (3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] 6 Cr.R. No.-459/2019 (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
7. On careful reading of Section 197 of the Cr.P.C., it appears that the intention behind the Section 197 of the Cr.P.C. is to protect public servant from being unnecessarily harassed. The Section is restricted for prosecution of government servant for the act while discharging their official duties. The Hon'ble Apex Court has elaborated the principle of Section 197 of the Cr.P.C. in various cases.
8. In the case of Pukhraj Vs. State of Rajasthan and another reported in (1973) 2 SCC 701 the Hon'ble Apex Court has held as under :-
"2...........While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only, by public servant and not anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of 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 need the act constituting the, offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely 7 Cr.R. No.-459/2019 in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "Cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
9. The Hon'ble Apex Court in the case of Bakhshish Singh Brar Vs. Gurmej Kaur and another reported in (1987) 4 SCC 663 has held as under :-
"6.........It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section. 196 and 197 of the Criminal Procedure Code. But it is equally important that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to to what extent and now far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit."
10. Further, in another case Prakash Singh Badal Vs. State of Punjab reported in 2007(1) SCC 1 the Hon'ble Apex Court has also held as under:-
"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity."
11. The Hon'ble Apex Court in the Case of Subramanian Swamy Vs. Manmohan Singh and Another reported in (2012) 3 SCC 64 the Hon'ble Apex Court has held as under :-
"74......................Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against 8 Cr.R. No.-459/2019 malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption."
12. On careful reading of the above cited judgments of the Hon'ble Apex Court it is manifest that Section 197 of the Cr.P.C. intends to protect public servant from harassment. It protects public servant from any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. Further, its operation has to be limited to those duties which are discharged in the course of their duties and once any act or omission found to have been committed by any public servant in the discharge of their duties, then it must only be given liberal and vide construction, so far its official nature is concerned.
13. Further, in the Case of Inspector of Police and Another Vs. Battenapatla Venkata Ratnam and Another reported in (2015) 13 SCC 87 the Hon'ble Apex Court while reiterating the judgment in the case of Sambhoo Nath Mishra Vs. State of U.P. and others reported in (1997) 5 SCC 326 and Rajib Ranjan and others Vs. R. Vijaykumar reported in (2015) 1 SCC 513 in paras 9 and 11 has held as under:-
"9. In a recent decision in Rajib Ranjan and others v. R. Vijaykumar (2015) 1 SCC 513, at para 18, this Court has taken the view that "18........even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted".9 Cr.R. No.-459/2019
11. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."(underline added)
14. Further, the Supreme Court in case of State of Uttar Pradesh Vs. Paras Nath Singh {(2009) 6 SCC 372} has examined the expression discharge of official duty. It further reiterated the case of B. Saha V. M.S. Kochar {(1979) 4 SCC 177} wherein it is held as under:
"6. XXX XXX XXX
11. Such being the nature of the provision, the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC
177) it was held: (SCC pp. 184-85 para 17)
17.The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these 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. The right approach to the import of these words lies between 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 and the said provision."(emphasis in original) 10 Cr.R. No.-459/2019 Use of the expression 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his official duty."
15. The Court further reiterated the view taken in the cases of State of Kerala Vs. V. Padmanabhan Nair {(1999) 5 SCC 690}, Amrik Singh V. State of Pepsu (AIR 1955 SC 309) and Shreekantiah Ramayya Munipalli V. State of Bombay (AIR 1955 SC 287) and has held that the offence under Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.
16. Further in the case of Prakash Singh Badal (supra) in the context of Section 420, 467, 468, 471& 120-B, the court has laid down the principle about necessity of sanction under section 197 of Cr.P.C.
"The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B 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."
17. In the case of Devinder Singh & others Vs. State of Punjab {(2016) 12 SCC 87} it has laid down the principle as under:
"39.The principles emerging from the aforesaid decisions are summarized hereunder :11 Cr.R. No.-459/2019
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned.
Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
39.4 In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5 In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea 12 Cr.R. No.-459/2019 can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
39.9 In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence.
Question of good faith or bad faith may be decided on conclusion of trial."
18. After reading of the above, it is found that if the allegation against the public servant is for the offence of cheating, fabrication, misappropriation of record and also it allegation of criminal conspiracy are leveled then there is no need of sanction at earlier stage and it could be taken up at the stage of trial. Therefore, in view of the principle laid down by the Hon'ble Apex Court, this Court is of the view that if the prosecution could not get sanction at the stage of enquiry then it does not vitiate the whole proceedings. 13 Cr.R. No.-459/2019
19. In the present case, the allegation against the petitioner is for the offence under Section 409, 420 r/w 34 of IPC for making embezzlement of rupees more than one crore and by the act of petitioner, Bank incurred the financial loss. In view of the abovesaid principles laid down by the Hon'ble Apex Court, this is not a case where sanction under Section 197 is required atleast this earlier stage of trial.
20. On arguing before the learned lower court, learned counsel for the petitioner has argued that under the M.P. Cooperative Society Act, if any embezzlement or loss is found which incurred loss to the Bank then the recovery proceeding can be initiated but in this regard criminal prosecution cannot be instituted directly. Thus, it would be appropriate to decide this issue whether also against the office bearer of Cooperative Society, offence under the IPC can be registered or not. In the case of Madhya Pradesh Vs. Rameshwar and others reported in 2009(11) SCC 424, the Hon'ble Apex Court has held that if overt act of the office bearer of the Cooperative Society falls within the category of IPC crime, then such crime shall be registered simultaneously, therefore, there is no strictly bar under the Act to register the offence of IPC if it is made out against the office bearer of society.
21. From the foregoing discussion, this court is of the opinion that the learned lower court did not make any error while rejecting the application under Section 197 Cr.P.C., however, it is made clear that this court has considered the merits of the case only on the limited sense with regard to section 197 of Cr.P.C. 14 Cr.R. No.-459/2019 The learned trial court shall proceed with the trial on his own discretion without being influenced from any finding of this court.
22. Accordingly, this petition is devoid of merit and is hereby dismissed.
(Rajendra Kumar Srivastava) JUDGE pallavi PALLAVI SINHA 2019.08.29 10:54:24 +05'30'