AMRIK SINGH versus THE STATE OF PEPSU.

Hans MUlltr of Nurenburg ,,. Suptrinten<knt) Presidency Jail, . Calcutta. and otherS' Bose J~

1955 February 28

1302: SUPREME COURT REPORTS.

that were raised · in the petition were not seriously piessed and as. they are of no substance we need not discuss them.

. The petition fails and is dismissed.

Petition dismissed.

l\MRIK SINGH

THE STATE OF PEPSU.

[S. K. 'DAS, BHAGWATI arid VENKATAAAMA AYYAJ!. JJ.)

Criminal Procedure Code (Aci V·of 1898), s.-197(1)-Charge of criminal ~isappropriation against public servant-Sanction for prosecution under s. 197(1) of the Code of Criminal .Procedure-W hen necessary-Whether every offence committed· by public servant or every act done. b~ -him while .performing .official duties requires sanc-tion for prpsecution.

It -is not every ·offence · •committed by public servant · that retjui-res sanction for prpsecu\i.t;n. under s . .197(1} of the Code of Criminal Proct;dure . nor. eveµ every act done by him while he is actually engaged in µie performanCe of his official duties; but if the act compla.ined. of : is· direCtly concerned \vith his official duties so that, if queStionea, it c'ould b'e claimed to 'have been done by virtue of·the office, then. san<;tion. would .be necessanr; and that would be so, irrespective of whether it \Vas, iri fact, proper discharge of his duties, ·because that ,.Would re:illy be ··matter Of defence on the merits, which would have to be investiga'.ted at the· trial, and could not arise at the stage -of the grant of- sanction, which must precede the institution of the prosecution.

Whether sanction is· ·necessary to Proseeute .public servant on charge of criminal .misappropriation, will depend qn whether the acts complained of hinge on }:iis duties as public servant. If they do, then sanction i_s requis~te. But if· they are uncoqnected with such duties, then nb. sancti~n "is necessary._.. ·' ·

Hori Ram Singh Y •. Emperor ([1939] F.C.R. 159), H. H. B, Gill v. The King ([1948] L.R. ·75 LA. 41), Albert. West Meads v. The King '([1948] 'L.R. 75 I.A. 185), Phaniniira Chandra v. The King (['I949J L.R::76 LA>lO); 'R. W:· Math'ams v. "State°<jf West·B.engal ([.1955]. .l S.C:R. 2'16~:artd Shreekttntiah Ramayya· Munipalil v. The State of Bombay ([·1955-].:J .s.C.R:- 117.7),. referr<;d to.'

Criri:iirial

CRIMINAL APPELLATE JuR1smcTmN: Appeal• No:·48 of "195'11."·'"' ... · · "·· ··•""'"· ...

S.C.R. SUPREME COURT REPORTS 1303

Appeal by Special Leave granted by the Supreme Court by its Order dated the 31st July 1953 from the Judgment and Order dated the 15th May 1953 of the High Court of Judicature for the State of Pepsu at Patiala in Criminal Appeal No. 140 of 1952 arising out of the Judgment and Order dated the 31st March 1952 of the Court of Magistrate 1st Class, Patiala in Challan Case No. 160/102 of 1951.

fai Gopal Sethi, (Naunit Lal, with him) for the appellant.

N. S. Bindra, (Porus .. Mehta and P. G. Gokhale, with him) for the respondent.

1955. February 28. The Judgment. of the Court was delivered by

VENKATARAMA AYYAR J.-The appellant was Sub-Divisional Officer in the . Public Works , Depart-ment, Pepsu, and was, at the material dates, in charge of certain 'works at place called Karhali. It was part of ·his ·duties .to disburse the wages to the work~ men employed in the works, and the procedure usualc ly followed was that he drew the amount required from the treasury, and paid. the same to the emplo-yees against their signatures or thumb-impressions in the monthly acquittance roll. In the roll for· April 1951, one Parma was mentioned as . khalasi (menial servant), and sum o~ Rs. 51 shown as paid to him for: .his wages, the payment being vouched. by thumb-impression. The case .. of the prosecution was. that there was, in fact, no person of the name of. Parma, that the .. thumb-impression found in the , acquittance roll was. that of, the appellant himself, that he had included fictitious name;· in tl;ie acquittance roll, with intent ~o himself draw the_ .amount, and· that. by this expedient he had received,!~· -;S,~ ,ap.d JJ?.isappropriated the same. . · ·. .. '" , ........ ·. : , ,. , . . ..

The First-Class ·Magistrate "of Patiala; before whom the appellant was put up for trial;:. framed charges against him under section 465 of 'the ''Indian Penal Code ·for ·forging ·the thumb-itnpressiori of Parma, and under' "sectidn t409· ·of tlie ln<c'!i~n · Penal 'Co<le for trimi-n·a'f misappropi'i'ation • ·of"'Rs. 51, and' ·after' 'full "trial,

Amrik Singh v. TM State of PepsU:

.A.mrik Singli v. ' TM State of P1ps1l Venkatarama Ayya> J.

1304 SUPREME1 CO,URT. REPO:(lTS~

[!955];

acquitted him. . He held on .. the eviqence • that,• ;'there w:is khalasi Parma by name in the . service ·-0f . the accused at Kehtauli", and that. though · .the. ,t\11,1m,b-impression in the acquittance roll ,. was .that, .of .~_the appellant, the prosecution had. not established .. 1.that the amount drawn by him did. not .reach the hands. of Parma. Against this judgment, there wa5 . an .,,appeal. by the State to the High· Court of Pepsu; whic;h held that proof that the. thumb;impre~sion., .in , the,, ac.quit-tance roll was that of the appellant was sufficient,. when taken along with .other circumstances, t6' e5fab-lish his gtiilt, and 'accordinglf convi'Ctecl . him 'both under section 465 ;µid section 409 . of the 'Indiirr''Periar Code. This appeal by special' leave is· directed ·'against this judgment. ' · · · · ':· '·In support of. the appeal it is· argued by Mr.·' Jai Gopal · Sethi that the- conviction of the appellant · is illegal, as sanction had not been· obtained under ·sec-· ti on 197 ( 1) of the Code of Criminal Procedure rfor«his prosec11tiorl, that the ev'idence on ·record. ·,is ·in~sllfficient to establish an.· offence either· ·under section .465-ror sec-tion 409 of. the Indian Penal Code arrd that there 'hav-ing . been . an acquittal of the . appellant by the trial Magistrate, the materials on record did not justify ·a reversal of. that verdict by the appellate Couit. • ·· :· The question of sanction under section 197 ( 1} of the Code of Criminal Procedure may· be taken up fii~i· for consideration, as it goes to the root of the rii~tter. The facts beaiing on this question· are · that there· 'was an application . by· the Department · for . s.anction ' . to prosecute the . 'appellant for arr . offence . linaer sectiOn 409, and that, the Chief .. Secretary; Home Depaitfuent, sent . the ' communication; Exhibit PX, statirig thai: he had been "dire'cted ic>" convey sanction. ''of the .Gov-eriurient to his prosecution": · In· ·view of this, no question was raised before the trial Magistrate' 'or· the High. Court that the prosecution was .bad for want of sanction. ·But after thtl : disposal . of the app~l by th.e High Court, it was· discovered that,. in. fact,, .there was np order· of .the Government sanctioning the pre>-secution, and . that the . Chief Secretary had :committed mistake in sending the communica,tion,. · Exhibit; PX.

' . ...

1955 Amr.ik_Si~gh v. The State of P-.epsu ,v enkatarama Ayyar .J.

· fo the course of his judgment, Varadachariar, J. discussed ,the sc0:pe of section 197 (I) of the Code of Criminal Procedur.e and after observing that the deci-·sions on that section were not uniform, proceeded to group them under three categories-those which had .held that sanction w.as necessary when the act com-plained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which .the official character of the person gave him an ·opportunity for the .com-mission of the crime, and those which had held it necessary when the offence was committed while ·the -accused was actual! y ·engaged in the performance of official duties. The learned Judge expressed his "\greement with the first of the three views. In H. H.B. Gill v. The King(1),.the question arose directly with reference to section 197 ( 1) of the Code of Criminal Procedure. There, the accused was charged under section 161 with taking bribes, and under sec-tion 120-B with .conspiracy. On the question whe-ther sanction was necessary under section 197 ( l) it was held 'by the Privy Council that there was no difference in scope between that section and section 270 of .the Government of India Act, 1935, and ap-proving the statement of the law by V:aradachariar, J. in Hori Ram Singh v. Emperor.('), Lord Simonds ob-served: ·

"A public servant can Gnly be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within .the scope of his official duty ........ The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". It was accordingly held that as the acts with which the accused was charged could not be justified as done by virtue of his office, no sanction was necessary. The view taken in H. H. B. Gill v. The King( ) was followed by the Privy Council in Albert West Meads v. The King('), and reaffirmed in Phanindra Chandra v. (I) [1948] L.R. ·;5 I.A. 41. (3) [1948] (2) [1939] L.R. F.C.R. 75 159. I. A. 185. "

S~C.R. SUPREME COURT REPORTS

The King([1]), and adopted by this . Court m R. W. Mathams v. State of West Bengal( [2]).

The result of the authorities may thus be summed up : It is not every offence committed by public ser-vant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; 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 sanc-tion would be necessary; and that would be so, irres-pective of whether it was, in fact, proper discharge of his duties, because that would really be matter of defence on the merits, which would have to be in-vestigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

It is conceded for the respondent that on the principle above enunciated, sanction would be re-quired for prosecuting the appellant under section 465, as the charge was in respect of his duty of obtaining signatures or thumb-impressions of the employees be-fore wages were paid to them. But he contends that misappropriation of funds could, under no circum-stances, be said to .be within the scope of the duties of public servant, that he could not,. when charged with it, claim justification for it by virtue of his office, that therefore no sanction under section 197 ( 1) was necessary, and that the question was concluded by the decisions in Hori Ram Singh v. Emperor( [3 ]) and Albert We;t Meads v. The King( [4 ]), in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad statement of the legal position, and that the two decisions cited lend no support to it. In our judgment, even when the charge is one of misappropriation by public servant, whether sanction is required under secti@n 197{1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attach-

(!) [1949] L.R. 76 I.A. 10. (3) [1939] F.C.R. 159.

(2) [1955] 1 S.·C.R 216. (4) {1948] L.R. 75 I. A. 185.

Amrik Singh v. The State of Pepsu

Venkatarama Ayyar J.

Amrik Singh . v. The State of Pepsu Venkatarama Ayyar J.

ing to the office as to be inseparable from them, then sanction under section 197(1) would be necessary; but if there · Was no necessarv connection beween 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.

Quite recently, this Court ·had to consider in Shree-kantiah Ramayya Munipalli v. The State of Bombay(') the necessity for sanction under section 197 ( 1), when the charge was one of misappropriation under section 409. There, the law was laid down in the following terms:

"The section has content and its language must be given meaning. What it says i5-" 'when any public servant. , ...... 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 .......... ' We have therefore first to concentrate on the word ~offence'.

Now an offence seldom consists of single act. It· ls usually composed of several elements and, as 'rule, whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrusttnent' . and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as public servant'; third, that there was 'disp0sal'; and fourth, . that the disposal was 'dishonest'. Now it is evident that the entrusttnent 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". On the facts, it was held in that case that the several acts which were complained· of, were official acts, and that the prosecution was bad for want of sanction.

The decisions in Hori Ram Singh v. Emperor('), and Albert West Meads v. The King( ) when properly examined, do not support the extreme contention (1) [1955] l s.c.R. 1177. (2) [1939] F.C.R. 159. · · · (3) [1948] L.R. 75 I.A. 185.

S.C.R.·

urged on behalf of the respondent. In Hori Ram Singh v. Emperor(1), the medicines had not been entered · in the stock book, and were removed by the accused to his . residence, and the charge against him was that in so removing them he had committed mis-approprfation. It was no part of the duty of the _accused to remove medicines to his house,, and he could not claim that he did so by virtue. of his office. He could have made such claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J .. observed that, " .... so far as the charge under section 409 was con-cerned; the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty". Reference may also be made to the following observa-tions of Sulaiman, J. in the same case :

"The question whether criminal breach of trust can be committed while purporting to act in execu-tion of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in generalized way has been responsible for loose language used in some of the cases cited be-fore us. . . . . . . . The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case".

In Albert West Meads v. The King (2), an Army Officer had received two sums of money, and was subsequent-ly unable to produce them. He was charged with criminal misappropriation, and convicted. He con-tended that the conviction was iilegal for want of sanction, but the Privy Council, following H. H. B. Gill v. The King([3]), rejected this contention. It is essential to note that the accused did not claim to have spent the amount in the course of his official duties, but stated. that the moneys had been con-sumed by fire~ It is with reference to these facts that the Privy Council observed :

(1) [1939] F.C.R. 159.

(2) [1948] L.R. 75 I,A. 185.

(3) [1948] L.R. 75 I.A. 41.

9-90 S. C, India/59

Amrik Singh v.

Thi State of Pepsu

V 1nkatarama Ayyar J.

1355 Amrik Singh . ' v. The Stfl!~ !![ Pepsu Venka_tarama Ayyar J.

" .. :.the appellant 'could not· justify the .acts · in respect ·of which he ·was charged', i.e. acts. of· fraudu-leritly misapplying money entrusted to his .care as public servant, · 'as acts done by him by virtue of the office that he held"'.

The result then is that whether sanction is necessary to prosecute public servant ·on charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary: In this view, we have to examine whether the acts with which · the appellant is charged directly bear on the duties which he has got to discharge as public servant. The appellant received the sum of Rs. 51 alleged to have been misappropriated, as Sub-Divisional Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-im-pression in acknowle<lgment thereof. The accused does claim to have paid the amount to Parma, and the acquittance · roll records the payment, and there is in acknowledgment thereof thumb-impression as against. his name. If what appears on the face of the roll is true-and whether it is true or not is not matter ·relevant at the stage of sanction-then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanc-tion was required under section 197 ( 1) of 'the Code of Criminal Procedure before the appellant could be prose-cuted under section 409, and the absence of such .sanc-tion is fatal to the maintainability of the prosecution. The ·conviction should, · therefore, be quashed.

In this view, there is no need to ·consider whether on the evidence, : the offence· of criminal misappropria-tion or forgery has been brought home to the·· appel-lant or · not.

The appeal is accordingly ·allowed; and the' c'c;mvic-tions and sentences passed on ·the appellant are ·set aside. 'Fine,.' if· paid, will be refunded. · · '· · · · ' · : · 'Appeal allowed. ' !