Supreme Court of India
Dr. Lakshmansingh Himatsingh Vaghele vs Naresh Kumar Chandrashankar Jha And Anr on 24 July, 1990
Equivalent citations: 1990 AIR 1976, 1990 SCR (3) 511, (1990) 1 BLJ 584, AIR 1990 SUPREME COURT 1976, 1990 (4) SCC 169, AIR 1991 (NOC) 73 (AP), 1991 FAJ 45, 1990 CRIAPPR(SC) 332, 1990 UP CRIR 317, 1990 (2) FAC 128, 1990 SCC(CRI) 558, 1990 (3) JT 241, (1991) 1 SERVLR 490, 1990 BLJR 1 582, (1990) 2 PAT LJR 79, (1990) EASTCRIC 649, (1991) 1 EFR 156, (1990) 2 FAC 128, (1990) 2 GUJ LR 1182, (1990) 2 KER LJ 766, (1990) MAD LJ(CRI) 695, (1990) 2 CHANDCRIC 120, 1990 CHANDLR(CIV&CRI) 449, (1991) 2 LAB LN 86, (1990) 3 ANDH LT 605, (1991) 62 FACLR 926, (1992) 1 LABLJ 445, (1991) 1 ANDHWR 1, (1991) 1 CURLR 367
Author: M. Fathima Beevi
Bench: M. Fathima Beevi, T.K. Thommen, Kuldip Singh
PETITIONER:
DR. LAKSHMANSINGH HIMATSINGH VAGHELE
Vs.
RESPONDENT:
NARESH KUMAR CHANDRASHANKAR JHA AND ANR.
DATE OF JUDGMENT24/07/1990
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
THOMMEN, T.K. (J)
KULDIP SINGH (J)
CITATION:
1990 AIR 1976 1990 SCR (3) 511
1990 SCC (4) 169 JT 1990 (3) 241
1990 SCALE (2)136
ACT:
Code of Criminal Procedure 1973--Section 197--Sanction
to prosecute--When necessary for--'Public servant'--'Public
analyst'-Sanction to prosecute--Whether necessary.
HEADNOTE:
The appellant, an employee of the Municipal Corporation
Ahmedabad was holding the post of Laboratory Officer and
while he was so holding the post, he by a Notification dated
21.12.1966, issued by the State Government, was appointed as
a Public Analyst for the local area within the municipal
limits of the Corporation. The respondent filed a complaint
before the Magistrate for offences punishable under Sections
465, 468 and 20 1. I.P.C. alleged to have been committed by
the appellant while exercising his functions as a Public
Analyst. The appellant moved the High Court under Section
482, for quashing the criminal proceedings sought to be
initiated against him by the said complaint. His principle
contention was that he being a public servant removable from
office only by the State Government, the magistrate could
not take cognizance of the alleged offences and that previ-
ous sanction of the State Government as contemplated under
section 197, Cr.P.C. was necessary. The High Court rejected
the contention of the appellant and dismissed the petition.
He has filed this appeal after obtaining special leave from
the Court.
Dismissing the appeal, this Court,
HELD: The privilege or immunity from prosecution without
sanction extends only when the accused is a public servant
of the kind mentioned in Section 197, Cr.P.C. He must be a
public servant as defined in Section 21 of the Indian Penal
Code and not removable from his office save by or with the
sanction of the State Government or the Central Government
as the case may be. The offence must also be one committed
by the accused while acting or purporting to act in the
discharge of his official duty. Section 197, Cr.P.C. clearly
intends to draw a line between public servants and to pro-
vide that only in the case of the higher ranks should the
sanction of the Government to their prosecution be neces-
sary. [513C-D, H]
512
The words "removable from office" occurring in Section
197 signify removal from the office one is holding. [514B]
In the instant case, the appellant was not holding any
public office in connection with the affairs of the State.
The State Government had merely entrusted him with the
functions of a Public Analyst which could be granted and
taken by an administrative Act. It was on account of his
being employed by the Municipal Corporation that he was
appointed as a Public Analyst in the cadre against any post.
The Prevention of Food Adulteration Act also does not con-
tain any deeming provision to treat the Public Analyst as a
public servant. [514D-E]
The appellant is not therefore a public servant remova-
ble only by the State Government. [514G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 387 of 1990.
From the Judgment and Order dated 12.1.1984 of the Gujarat High Court at Ahmedabad in Misc. Crl. Application No. 48 of 1982.
S.H. Sheth and S.C. Patel for the Appellant. B. Datta, Sunil Dogra and P.H. Parekh for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. Leave granted.
The appellant is aggrieved by the judgment of the High Court holding that sanction of the State Government as required under Section 197, Cr.P.C., is not necessary for taking cognizance of the offences against the appellant on the basis of the complaint filed by the respondent. The appellant is an employee of the Municipal Corporation, Ahmedabad. While holding the post of Laboratory Officer, the State Government by a Notification dated 21.12.1966.under Section 8 of the Food Adulteration Act, 1954 appointed the appellant as a Public Analyst for the local area comprised within the limits of the Corporation. The complaint was filed by the respondent before the Magistrate for the of- fences punishable under Sections 465,468 and 201, I.P.C., alleged to have been committed by the appellant while exer- cising the functions as Public Analyst.
513The appellant moved the High Court under Section 482, Cr.P.C., for quashing the criminal proceedings on the ground that, he being a public servant removable from office only by the State Government the Magistrate could not take cogni- zance of the offence alleged to have been committed while discharging the duties as Public Analyst without the requi- site sanction under Section 197, Cr.P.C. The High Court rejected this contention and dismissed the petition. Under Section 197(1), Cr.P.C., when 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 of the Government. The section extends immunity from irre- sponsible, frivolous and vexatious prosecution. The privi- lege of immunity from prosecution without sanction extends only when the accused is a public servant of the kind men- tioned therein. He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Govern- ment or the Central Government as the case may be. The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty. Section 21, I .P.C., reads as under:
21. "Public servant"--The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:
Twelfth .--Every person--
(a) in the service or pay of the Government or remu-
nerated by less or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by Or under a Central, Provincial or State Act or a Government company as defined in Section 6 17 of the Companies Act, 1956 ( 1 of 1956).
Section 197, Cr.P.C., clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks 514 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 of- fice. 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 to an office for exercising functions under a particular statute will not alter his status as an employee of the local authority. The appellant herein is admittedly the Laboratory Offi- cer in the service and pay of the Municipal Corporation of Ahmedabad. The appointment as Public Analyst by the Govern- ment does not confer on him the status of a public servant or an officer under the service and pay of the Government. He is not remunerated by any fee by the Government. The appellant was not the employee of the State Government and was not employed in connection with the affairs of the State. He was not holding any public office in connection with the affairs of the State. The State Government had merely entrusted him with the functions of a Public Analyst which could be granted and taken by an administrative act. It was on account of his being employed by the Municipal Corporation that he was appointed as a Public Analyst by the Government. He is not appointed as Public Analyst in the cadre against any post. The Prevention of Food Adulteration Act also does not contain any deeming provision to treat the Public Analyst as a public-servant.
The appellant is holding an office from which he is removable by the Local Authority and not by the Government. The cancellation of the appointment as Public Analyst would not amount to removal from office. Section 197, Cr.P.C., in this context contemplates the removal of the appellant from the office of the Laboratory Officer and not his transfer or removal from the office of the Public Analyst. The removal of the appellant from the office of Public Analyst would not affect his office as a Laboratory Officer under the Local Authority and would not amount to removal from office. The appellant is not therefore a public servant removable only by the State Government. The High Court was right in its view. We accordingly dismiss the appeal.
Y. Lal Appeal dismissed.
515