Calcutta High Court
Paresh Chandra Koji vs The State on 27 November, 1997
Equivalent citations: 1998CRILJ923
ORDER Dibyendu Bhusen Dutta, J.
1. The Present revisional application is directed against the order dated November 26, 1992 passed in Special Court Case No. 5 of 1992 by the Judge, First Special Court, Birbhum at Suri.
2. On the basis of a complaint lodged by the Chief Medical Officer of Health, Birbhum, on November 11, 1987 with the officer-in-Charge of Suri Police Station, Suri P.S. Case No. 15 dated 11-11-87 was started under Sections 467, 468, 471, 120B, 477A, 420 of the Indian Penal Code. In the said complaint it was alleged that in course of an audit conducted by the officers of A.G., West Bengal from March 11,1987 to April 13,1987, it was detected that a huge amount of government money to the tune of Rs. 4.94 lacs had been drawn fraudulently during the period from December 1, 1982 to July 31, 1985. In the said complaint, it was suspected that the officers and staff of the Department of Health and Family Welfare as well as Birbhum Treasury were involved in a conspiracy to defalcate the said government money. The petitioners are from Birbhum Treasury. The P.S. Case referred to above corresponds to G.R. Case No. 663 of 1987 in the Court of Sub-Divisional Judicial Magistrate, Suri. After investigation, charge sheet was submitted on 22 October, 1990 under Sections 467, 468, 471, 477A, 409, 420, 120B of the Indian Penal Code. In the said charge-sheet, for want of a sanction the present petitioners were not sent up and the ld. Sub-Divisional Judicial Magistrate, Suri by order dated October 22,1990 discharged the present petitioners. But long after the said discharge, the Special Court by the imugned order dated 26-11-92 passed in Special Court Case No. 5 of 1992 which arose out of the said G.R. Case No. 663 of 1987 took cognizance of the offence under Section 409 of the Indian Penal Code against the present petitioners and issued process.
3. Challenging the impugned order, it has been urged by Mr. Balai Roy with Mr. B. P. Ghosh appearing for the petitioners that the cognizance taken against the petitioners is illegal and bad in law by reason of the fact that the sanction for prosecution as required under Section 197, Cr.P.C. was not given by the concerned authority and as such, the proceeding pending before the Special Court as against the present petitioners should be quashed. On the question of necessity of sanction, two Supreme Court decisions Amrik Singh v. State of Pepsu and , Pukhraj v. State of Rajasthan were cited on behalf of the petitioners.
4. Mr. Sekh Kasem Ali Ahmed, the ld counsel appearing for the State, on the other hand, contended that as the materials on record now stand, there is no necessity for any sanction for the prosecution of the present petitioners for an offence under Section 409 Indian Penal Code and as such, no exception could be taken to the impugned order of the ld. Judge whereby he was pleased to take cognizance on the basis of the charge sheet and the materials under Section 173(5), Cr.P.C. It has been also submitted by Mr. Ahmed that the facts establishing the necessity of sanction might come to light during the course of the prosecution evidence at the trial and in such eventuality, the want of previous prosecution might prove fatal to the instant prosecution, but for the present as the materials on record stand, it cannot be said that a case for sanction within the meaning of Section 197, Cr.P.C. has been made out as such, there is no scope for any interference by this Court at this stage. Reliance has been placed in support of the above contentions in , Om Prakash Gupta v. State of U.P., , Pukhraj v. State of Rajasthan (on which reliance has also been placed on behalf of the petitioners); , S.B. Saha v. M.S. Kochar; , Balbir Singh v. D. N. Kadian; 1988 Cri LJ 1027 (Orissa), Dhulamani Behera v. State of Orissa and , Bakhshish Singh v. Gurmej Kaur.
5. In the decisions which were cited on behalf of the petitioners as well as the State and which have been referred to above, the law regarding the circumstances under which sanction under Section 197 of the Cr.P.C. would be necessary have been laid down.
6. In , Amrik Singh v. State of Pepsu, the accused was a Sub-Divisional Officer in the Public Works Department. It was part of his duties to disburse the wages to the workmen employed in the works. And the procedure usually followed was that he drew the amount required from the treasury, and paid the same to the employees against their signatures or thumb-impressions in the monthly acquittance roll. In the roll for a particular month a particular person was mentioned as a khalasi and an amount was shown as paid to him for his wages, the payment being vouched by thumb-impression. The prosecution case was that there was no person of that name that the thumb-impression found in the acquittance roll was that of the accused himself and that he had included a fictitious name in the acquittance roll with an intent to himself drew the amount and that by this expedient he had received the amount and misappropriated the same. The Supreme Court was of the view that the acts with which the accused was charged fell within the scope of his duties and could be justified by him as done by virtue of his office and as such, it was held that sanction was required under Section 197(1), Cr.P.C. before the accused could be prosecuted under Section 409 of I.P.C. and in such view of the matter, held that the absence of such sanction was fatal to the maintainability of the prosecution and accordingly, quashed the conviction. In dealing with the question of necessity for sanction under Section 197(1) of Cr.P.C, the Supreme Court took into account the Federal Court decision in Hari Ram Singh v. Emperor AIR 1939 PC 43 : 1939 (40) Cri LJ 468; the Privy Council decisions in H.H.B. Gill v. The King ; Albert West Meads v. The King and also the Supreme Court decisions in R.W. Mathams v. State of West Bengal AIR 1954 SC 455 : 1954 Cri LJ 1161 and Shreekantiah Ramayya Munipalli v. State of Bombay, . The Supreme Court made reference to the observations in the Federal Court decision referred to above to the effect that the question whether a criminal breach of trust can be committed by a public servant while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract without any reference to the actual facts of the case. The question whether the acts purported to have been done in execution of duty or not must depend on the special circumstances of each case. The Supreme Court held that whether sanction was necessary to prosecute a public servant on a charge of criminal misappropriation will depend on whether the acts complained of hinge on his duties as a public servant and that, if they do, then sanction is required and if they are unconnected with such duties, then no sanction is necessary.
7. In , Om Prakash Gupta v. State of U.P., one of the questions that arose for determination was as to whether sanction was necessary to prosecute a public servant on a charge under Section 409, I.P.C. and a five Judge Bench of the Supreme Court observed in paragraph 30 of the decision, 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 a public servant and after making this observation made it clear that they were in agreement with the aforesaid view and accordingly held that no sanction to prosecute the public servant under Section 409 of I.P.C. is necessary.
8. In , Pukhraj v. State of Rajasthan, the complainant alleged that at the time of arrival for inspection the Post Master General kicked the complainant and abused him when he was submitting his representation for cancellation of his transfer and the Supreme Court held that the acts of the public servant so alleged could not be said to have been done in purported exercise of his duty. The Supreme Court, while discussing the case law regarding the necessity of sanction under Section 197, Cr.P.C, observed that on the question of necessity of sanction under Section 197, Cr.P.C. the law was by then well settled, but the difficulty really arises in applying the law to the facts of any particular case. It also observed : "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 in 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 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". The Supreme Court referred to one of the tests as laid down by the Privy Council in Gill's case 1948 (49) Cri LJ 503 (supra). The test is whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. The Supreme Court referred to its earlier view expressed in Matajog Dobey v. H. C. Bhari, . The view was that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by Section 197. In Matajog's case (supra), the Supreme Court summed up the results of the earlier decisions as follows : "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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty". The Supreme Court observed that at that stage all that they are concerned with is whether on the facts alleted in the complaint it could be said that what the accused is alleged to have done could be said to be in purported exercise of his duty. It was also observed that while doing so, the truth or falsity of the allegations is not to be looked into. The Supreme Court at paragraph 3 visualised the situation that even though the acts alleged could not be said to be in purported execution of duty, but facts subsequently coming to light during the course of the prosecution evidence at the trial might establish the necessity for sanction. The Supreme Court was categorical in laying down the proposition to the effect that whether sanction is necessary or not may have to depend from stage to stage and that the necessity may reveal itself in the course of the progress of the case and that it would be open to the accused to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197, Cr.P.C.
9. In , S.B. Saha v. M. S. Kochar, the Supreme Court held that the question of sanction under Section 197 can be raised and considered at any stage of the proceedings and in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations on the complaint and the Court can take into account all the materials on the record at the time when the question is raised and falls for consideration. In the reported case it was alleged that the accused had seized the goods and were holding them in trust in the discharge of their official duty for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or convert those goods and it was held that the sanction was not necessary for the prosecution of the accused for an offence under Sections 409 and 120B because the alleged act of criminal misappropriation complained of. was not committed by them while they were acting or purporting to act in the discharge of their official duty. The commission of the offence having no direct connection or inseparable link with their duties as public servant and that at the most, the official status of the accused furnished them such an opportunity or occasion to commit the alleged criminal act. The Supreme Court also reiterated the view of the Federal Court expressed in Hari Ram (1939 (40) Cri LJ 468) (supra) that in a case under Section 409, I.P.C, the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of.
10. In , Balbir Singh v. D. N. Kadian, a Sub-Inspector and constable of Delhi Police Force was charged with the act of tampering with the search memo while the search memo was in custody of the Court. It was held by the Supreme Court that the act of tampering with search memo cannot be deemed to be an act purported to have been done by the accused in discharge of their official duties and as such, the previous sanction was not at all necessary for initiating the proceedings against them.
11. In 1988 Cri LJ 1O27, DhulamaniBeherav. State of Orissa, a Single Bench of the Orissa High Court while considering the question of necessity of sanction for prosecution under Section 197, Cr.P.C. vis-a-vis a charge of misappropriation of public funds under Section 409 I.P.C. had occasions to consider all the decisions that have so far been referred to right from Federal Court decision in Hari Ram 1939 (40) Cri LJ 468, Privy Council decision in Gill 1948 (49) Cri LJ 503 and all the Supreme Court cases referred to above. In the Orissa case, the accused was a welfare officer and prosecuted for having committed misappropriation out of an entrusted amount which he had received towards the boarding charges, staff salary and stipend of scheduled castes and scheduled tribes students and it was held that receiving money or being entrusted with it as a public servant by virtue of his office is undoubtedly a part of his official duty and disbursement or disposal of the same as officially required is also a part of his official duty. But misappropriation of the same is completely different and could not be in discharge of his duty. The Orissa Court held that no sanction was necessary for the prosecution.
12. In , Bakhshish Singh Brar v. Gurmej Kaur, the public servant was being tried for offence mentioned under Section 196, Cr.P.C. without any previous sanction under Section 197, Cr.P.C. It was also alleged in that case that injuries were inflicted upon the complainant along with others and as a result of injuries one of the victims had died. The trial Court took the view that after gathering the materials and some evidence it would be possible to determine whether the accused while acting in the discharge of his duties as a police officer exceeded the limit of his official capacity in inflicting injuries on the complaint and causing death of one of them. Following Pukhraj's case, , it was held by the Supreme Court that the order of trial Court was proper and the High Court was also right in not interfering with the order under Section 482, Cr.P.C. In doing so, the Supreme Court reiterated the view that even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained.
13. In the instant case, police, after investigation, submitted charge sheet against some persons after obtaining sanction and could not send up the petitioners only because of the fact that sanction was not obtained as against them. The ld. Special Judge appears to have considered suo motu the question of necessity for sanction for prosecution of the petitioners without that question being raised by the petitioners. The ld. Judge, upon consideration of the charge-sheet and the police papers, appears to have found out a prima facie case under Section 409, I.P.C. to be taken cognizance of against the petitioners and took cognizance and issued process against them since he was of the view that no sanction was necessary for their prosecution under Section, 409, I.P.C. The petitioners have straightway come to this Court to challenge the impugned order of the ld. Judge without first appearing before him in response to the process. During the hearing of this revisional application, it was not argued on behalf of the petitioners that the materials revealed from the charge-sheet and police papers are not sufficient to make out a prima facie case against them under Section 409, I.P.C. to be taken cognizance of. The cognizance taken is sought to be quashed on the sole ground of want of sanction. Mr. Roy did not take me through the materials on record for the purpose of showing prima facie that the acts constituting the alleged offence were directly and reasonably connected with the official duties of the petitioners. Generally, in the case under Section 409, I.P.C, the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of. This is, however, not to be understood as an invariable proposition of law. The question always depends on the facts of each case and if the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty sanction would be necessary and otherwise not. The ld. Special Judge has not of course in so many words made it clear in his impugned order that such inseparable connection as pointed out above is missing but then on behalf of the petitioners as well no attempt was at all made to establish such connection for the present on the basis of the facts and circumstances revealed from the charge-sheet and police papers. The Supreme Court has unequivocally expressed the view that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case. One of the broad tests as reiterated by the Apex Court, for the purpose of deciding the question whether the offence is committed in the course of official duty or under colour of office is whether the public servant, if challenged can reasonably claim that what he did he did in virtue of his office and it could not be shown on behalf of the petitioners at this stage that the requirement of this test has been satisfied in the facts and circumstances of this case. It may so happen that facts subsequently coming to light during the course of the prosecution evidence at the trial might establish the necessity for sanction. The necessity may reveal itself in the course of the progress of the case and it would be open to the accused petitioners to place the materials on record during the course of the trial for showing what their duties were and also that the acts constituting the alleged offence were so inter-related with their official duties so as to attract the protection afforded by Section 197, Cr.P.C. For the present all that we are concerned with is whether on the facts alleged in the charge sheet and disclosed by the police papers it could be said that what the petitioners are alleged to have done could be said to have been done in purported exercise of their duties. As the materials on record now stand, the aforesaid question cannot be answered definitively in the affirmative so as to warrant a conclusion that sanction was necessary for the prosecution of the petitioners.
Having anxiously considered the facts and circumstances of the present case as revealed from the materials which now stand on record in the light of the principles enunciated by the Supreme Court on the question of necessity of sanction vis-a-vis an offence under Section 409, I.P.C. as discussed above, 1 am inclined to hold that this is not a fit and proper case for invoking this Court's revisional or inherent jurisdiction to interfere with the impugned order at this stage. The revisional application is accordingly dismissed.