Karnataka High Court
K.S. Prabhakar, K.A.S. vs M/S Bhandra Shahakari Sakkare Karkhane ... on 3 February, 1995
Equivalent citations: 1995(2)ALT(CRI)397, 1995CRILJ2289, ILR1995KAR855, 1995(3)KARLJ85
ORDER
1. In this petition the petitioner questions the legality and propriety of the order dated 23-2-1994 passed by the learned Judicial Magistrate First Class, Davanagere in PCR No. 28/92 (CC No. 1043 of 1994) registering a case under Section 409 I.P.C. against him and issuing summons to him for the said offence.
2. Brief facts are that during the years 1987 to 1992 the petitioner was working as the Managing Director in the respondent-society. During the year 1988 the Deputy Commissioner, Chitradurga was appointed as the Special Officer to exercise the powers and functions of the committee of the Management of the society as it had been superseded under Section 30A of the Karnataka Co-operative Societies Act. The petitioner who was the Managing Director was transferred as Deputy Secretary of Zilla Parishad at Raichur in the year 1991 and in his place one Sri. Umapathi was posted. However that order of transfer was cancelled on 29-6-1991 by the Government. Apprehending some move by Sri. Umapathi in regard to that cancellation of the transfer, the petitionr engaged a lawyer for filing a caveat petition before the Karnataka Administrative Tribunal and accordingly the lawyer so engaged after filing a caveat petition on behalf of the petitioner describing him as the Managing Director sent him a bill for Rs. 1,500/- addressing the same to the Managing Director of the Sugar Factory. That bill is produced at Ex. P. 4 dated 10-7-1991. The bill was processed by the Office and on the reverse of it the revision petitioner directed payment by endorsing "please pay." In pursuance of this order a cheque for Rs. 1,500/- was issued to the lawyer from out of the funds of the respondent-sugar factory society and the same was encashed by the lawyer on 22-7-1991. In February 1992 elections were held to the managing body of the respondent sugar factory society and the new committee elected took over the management and authorised the Managing Director incharge to prosecute the revision petitioner. He refused to do so in the absence of government sanction to prosecute under Section 197 Cr.P.C. Thereafter the managing body authorised the Chairman to institute criminal proceedings. A notice was issued to the revision petitioner on 6-5-1992 demanding the amount alleging that the amount of Rs. 1,500/- had been spent for his own purpose by the revision petitioner and he could not have directed payment of funds payable by him personally to his lawyer from out of the funds of the society. The revision petitioner returned the amount by sending a draft on 21-5-1992. The respondent-society has encashed it.
3. Alleging temporary misappropriation of Rs. 1,500/- for a period of ten months from 22-7-1991 to 21-5-1992 with due authorisation from the managing committee, the Chairman of the respondent society filed a private complaint before the learned J.M.F.C. Davanagere. On 29-5-1992 the complaint was referred to the Deputy Superintendent of Police, Davanagere for Investigation under Section 156(3) Cr.P.C. in PCR No. 28 of 1992. After investigation the police submitted 'B' report on 15-5-1993. On 16-10-1993 a protest memo was filed by the complainant and sugar factory by its Chairman. The learned magistrate examined the complainant and two witnesses. Complainant produced certain documents and after hearing the complainant, the learned Magistrate by his detailed order dated 23-2-1994 directed registration of the case against the revision petitioner for an offence under Section 409, I.P.C. and directed summons to him. It is this order that is under challenge in the revision petition presented before this Court. In the detailed order after recording a finding with regard to the material placed for registering the offence under Section 409, I.P.C., the learned J.M.F.C. referring to requirement of sanction to prosecute under Section 197, Cr.P.C. opined that it was no part of the duty of the revision petitioner to commit an offence of misappropriation and therefore sanction to prosecute was not necessary and that finding was arrived at for the purpose of issuing process and he also kept it open for the revision petitioner to raise it after he put in appearance. The main question urged in the revision petition by the learned Counsel for the revision petitioner is that the learned Judicial Magistrate First Class, Davanagere could not have taken cognizance of the offence under Section 409, I.P.C. without the sanction to prosecute the petitioner issued by the Government under Section 197, Cr.P.C. and therefore requested the Court to quash the impugned order and the proceedings initiated without such sanction. On the other hand the learned Counsel Shri S. S. Koti appearing for the respondent contended that no sanction was required under Section 197 Cr.P.C. as urged on behalf of the revision petitioner and the impugned order suffered from no infirmity.
4. The question for consideration is, whether the impugned order is bad for want of sanction under Section 197, Cr.P.C.
5. That the revision petitioner was a Government servant at the relevant time is not in dispute. He was also not removable from his office save by or without the sanction of the Government of Karnataka State is also not in dispute. The revision petitioner has also admitted that at the relevant time he was as Managing Director having the dominion and control over the assets and funds of the respondent-society. He has further not disputed his Filing the caveat petition in the Karnataka Administrative Tribunal, Banglore and his ordering payment of Rs. 1,500/- to be paid out of the funds of the respondent towards the bill payable to his advocate for the professional services of filing the caveat petition and subsequent repayment of the same after a demand notice was issued to him by the respondent-society.
6. Complainant placed the evidence of P.W. 2 Vijaykumar an official of the respondent to the effect that when he had been to the lawyer Sri. Kotresh at Bangalore, the said lawyer issued him the bill for Rs. 1,500/- in the name of the Managing Director and he had brought and given in to the revision petitioner infroming him that the bill pertained to his private work and was given to him by his lawyer and the petitioner after taking it, had got it entered in the inward register and had ordered payment of the same on the reverse of it. Relying on the above material and the alleged allegations in the complaint copy of which is produced along with the revision petition to the effect that the revision petitioner-accused in his capacity as Managing Director of the sugar factory got debited by his order the advocate's fee covered under the bill for Rs. 1,500/- under the head of 'Legal Expenses' and paid it out of the sugar factory and that the petitioner acfcused as the Managing Director of the society was the public servant and was entrusted with the property and funds of the society and was having dominion and control over the property and the funds of the sugar factory in his capacity as such public servant it is contended that the alleged misappropriation by paying the amount of Rs. 1,500/- from out of the funds of the respondent was an act done in the discharge of his official duty and as such it required sanction under Section 197, of the Cr.P.C. for instituting the prosecution against the revision petitioner.
7. Number of authorities containing the principles of law on the requirement of sanction under Section 197, Cr.P.C. for prosecution for the offence under Section 409, I.P.C. against a public servant have been referred to by the Counsel on both sides. The learned Counsel for the petitioner in this connection placed reliance on the decision in State of Maharashtra v. Dr. Budhikota Subharao . Relevant portion after extracting Section 197, of the Cr.P.C. is stated in paragraphs 5 and 6 as under :-
"5. ........ The section falls in the Chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190, of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So for public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197, of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no Court shall take cognizance of such offence except with the previous sanction.' Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise or jurisdiction' or 'power to try and determine causes.' In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
6. Such being the nature of the provision the question in 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 S. B. Saha v. M. S. Kochar. , it was held.
"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. In 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 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."
Use of the expression, 'official duty' implies that act or omission must have been done by the public servant in 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 of omissions which are done by a public servant in discharge of official duty. In P. Arulswami v. State of Madras, this Court after reviewing the authorities right from the days of Federal Court and Privy Council held, "It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; 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, then sanction would be necessary. 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 S. 197, of the Criminal Procedure Code will be attracted. An offence 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. It is only when it is either within the scope of the official duty or in excess of the official duty or in excess of it that the protection is claimable."
It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed, strictly while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in restricted manner. But once it is established that act or omission was done by the 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 prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Baijnath v. State of Madhya Pradesh, thus, "the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty .... there must be a reasonable connection between the act and the discharge of official duly the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of performance of his duty."
If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197, of the Code cannot be disputed."
8. The petitioner's Counsel referred to the decision in R. S. Nayak v. A. R. Anthulay for the proposition that the relevant date for taking cognizance of an offence committed by a public servant as required by Section 6, of the Prevention of Corruption Act, 1947 is the date on which the Court is called upon to take cognizance of the offence of which he is accused.
9. He strongly relied on the facts and the principles stated in Shreekantiah Ramayya Munipalli v. State of Bombay . Head Note 'C' referred to by the petitioner reads as under (Paras 18 and 19) :-
"If S. 197, Criminal P.C. is construed too narrowly it can never be aplied, 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 which the Courts 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. The section has content and its language must be given meaning. The Courts have to concentrate on the word "offence" in the section. An offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. Where the elements alleged against the accused, a public servant in charge of Government stores are first, that there was an "entrustment" and/or "dominion," second, that the entrustment and/or dominion was "in his capacity as a public servant." third, that there was a "disposal" and fourth, that the disposal was "dishonest," it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or 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 the accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
10. On the other hand, the learned Counsel for the respondent referred to earlier decisions of the Supreme Court in Bajinath v. State of Madhya Pradesh (2) K. Satwant Singh v. State of Punjab, (3) S. B. Saha v. M. S. Kochar (4), Om Prakash Gupta v. State of Uttar Pradesh, (5) Ronald Wood Mathams v. State of West Bengal. AIR 1954 SC 455 : (1954 Cri LJ 1161) (6) Bhagwan Prasad Srivastava v. N. P. Mishra , (7) B. S. Samhhu v. T. S. Krishnaswamy (8) Vishwanath v. State of J and K, , (9) Vasanl Moghe v. State of Maharashtra, . The learned Counsel read copiously from these decisions. It is to be noted that in the State of Maharashtra v. Dr. Budhikota Subharao , extracted above, the Supreme Court after reviewing the authorities right from the days of the Federal Court and Privy Council in Arulswami v. State of Madras , extracted principles of law on the requirement of sanction under Section 197 Cr.P.C. The decision in Arulswami v. State of Madras refers to various decisions relied on by the respondent and therefore there is no need to refer to those decisions once again.
11. It is true that in Om Prakash Gupta v. State of U.P. . The Supreme Court has observed that quite a large body of case law in all the High Courts has held that a public servant committing criminal breach of trust does not normally act in his capacity as public servant. See State v. Pandurang Baburao , (FB) Bhup Narain Saxena v. State and State v. Gulab Singh , State v. Gurcharan Singh .
12. In S. B. Saha v. M. S. Kochar the Supreme Court observed that while the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159 : (1939 (40) Cri LJ 468), is generally applied with advantage and that "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office." Further in paragraph 21 the Supreme Court stated as under :-
".... in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty ... there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
Referring to the principles found in the above decision it is clear that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), of the Cr.P.C. nor even every act done by him while he is actually engaged in the performance of his official duties, but where the act complained of is directly concerned with his official duties, then sanction would be necessary. If an offence is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is climbable. Bajinath v. State of M.P. .
13. For necessity of sanction under Section 197, Cr.P.C. the act of misappropriation must have been committed in the discharge of or in the purported discharge of the official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. See Satwant Singh v. State of Punjab . Whether sanction is required under Section 197(1), will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under S. 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. [See ].
14. Keeping the above principles in view, it is to be seen whether sanction in the instant case under Section 197(1). Cr.P.C. is necessary. As per the averments in the complaint, the revision petitioner a public servant as Managing Director had the dominion and control over the funds of the society. There was entrustment of the funds and the assets of the respondent-society with the petitioner and there is no dispute about the same. The petitioner after the bill drawn in the name of the Managing Director for Rs. 1,500/- by the lawyer was placed before him after duly processing by the office of the respondent ordered on its reverse "please pay" and in pursuance of that order the payment came to be made. It is therefore obvious that the petitioner passed that order purporting to act in the discharge of his duties and if the order so passed was not under the colour of office, then payment would not have been made. The principles stated in Shreekantiah Ramayya Munipalli v. State of Bombay , apply to the facts on hand. In Shreekantiah Ramayya's case there were three accused. The first accused was the Officer Commanding the Military Engineering Stores Depot at Dehu Road near Poona and he was in over-all charge. The second accused was under him as the officer incharge of the Receipts and Issue control section and the third accused worked directly under the second as the Assistant Stores Officer. There was sanction to prosecute the first accused under Section 197, Cr.P.C. but no such sanction was obtained with regard to the second accused. The charge against them was that all of them had conspired and had illegally passed out of the depot iron stores worth about Rs. 4,000/- and handed over to the purchaser. The accused had entered into a conspiracy to defraud the Government and had arranged to sell and the money received had been pocketed by the three accused and had not been credited to the Government and the iron stores were passed out of the depot. On these facts the criminal act of delivering the iron stores worth Rs. 4,000/- was held to be in the discharge of official duty and sanction was held necessary to prosecute the accused No. 2. In the case on hand the order directing to pay Rs. 1,500/- was in the purported exercise of the duty and not for an act done by virtue of merely holding an office. It cannot be said that the official status furnished only occasion or an opportunity to commit misappropriation. He purported to act in the discharge of his duty and in so purported discharge of duty he ordered payment and caused dishonest, loss to the respondent-society. The dishonesty in doing the act does not obviate the necessity of sanction under Section 197(1), Cr.P.C. The duty of ordering payment and misappropriation of the amount are so integrally connected as to be inseparable from each other and if the act of payment was authorised one, it was an official act, if dishonest it was the dishonest doing of an official act but in either event the act was official because the petitioner could not have passed the order to pay the amount save by doing the official act, namely officially directing payment of the amount and that has been done by him and therefore the act complained of is an act of misappropriation which needs to be taken cognizance of only after sanction to prosecute under Section 197(1), Cr.P.C. is obtained. Therefore the cognizance taken without such sanction is illegal and the proceedings need to be quashed by allowing the petition.
14. In the result, the petition is allowed and the impugned order and the proceedings before the learned Judicial Magistrate First Class, Davanagere in C.C. No. 1043 of 1994 stand quashed.
15. Petition allowed.