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1960 DIGILAW 26 (RAJ)

State of Rajasthan v. Onkardas

1960-02-05

JAGAT NARAYAN

body1960
Jagat Narayan, J.—This is a revision application by the State against an order of the Sub-Divisional Magistrate, Pokaran, dated 13th August, 1958 holding that Onkardas respondent could not be prosecuted without the sanction of the Government under sec. 197 Cr.P.C. The respondent did not appear in spite of notice. 2. The respondent was the Chairman of the Pokaran Municipal Board upto July 4, 1956, A challan was submitted by the police in the court of the S. D. M. Pokaran on 7.7.58 under sec. 420 and 468 I. P. C. in which it was alleged that a journey from Pokaran to Jaipur for which the respondent drew travelling allowance in his capacity as Chairman of the Pokaran Municipal Board was in fact undertaken for his private purpose. Two contentions were raised before me on behalf of the State The first contention is that it cannot be said that the offences of cheating on forgery were committed in the discharge or purport to discharge of public duties and so sec. 197 Cr.P.C. is not attracted. The words used in that section are:— "When any person........................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...........................in the case of a person employed in connection with the affairs of a State, of the State Government." What is the proper interpretation to be put on the above words was explained by their Lordships of the Supreme Court in Amrik Singh vs. State of Pepsu (l) and Matajog Dubey vs. H. C. Bhari (2). In my opinion the submission of the T. A. Bill and the drawing of the travelling allowance are acts which are directly concerned with the respondents official duties, while he was Chairman of the Municipal Board Pokaran. In this view of the matter the first contention raised on behalf of the State has no force. 3. The second contention is that the protection under sec, 197 Cr.P.C. is only available to a person who is a public servant if he continues to hold that office on the date on which the court takes cognizance of the case. This point was not raised on behalf of the State before the learned Sessions Judge. 3. The second contention is that the protection under sec, 197 Cr.P.C. is only available to a person who is a public servant if he continues to hold that office on the date on which the court takes cognizance of the case. This point was not raised on behalf of the State before the learned Sessions Judge. There was a conflict of opinion on the question whether the word "is" in the phrase who is not removable from his office save by or with the sanction of a State Government refers to the date on which the alleged offence was committed or the date on which the court takes cognizance of the case. In Sugan-chand vs. Narain Das (3) and in In re S.Y. Patit[4) it was held that the word refers to the date on which the alleged offence was committed. In subsequent decision of the Nagpur High Court namely Madhya Pradesh State vs. Hafizul Rahman (5) it was held that the word referred to the date on which the court takes cognizance of the case and that the protection under sec. 197 Cr.P.C. is not available to a public servant who has ceased to hold office on the date on which cognizance of the offence is taken. The same view was taken by the Allahabad High Court in Ram Dayal Singh vs. State (6) and by the Bombay High Court in State of Bombay vs. Vishwakant Shrikant (7). 4. A similar question arose in connection with the interpretation of section 6 of the Prevention of Corruption Act which runs as follows : "No Court shall take cognizance of an offence punishable under Sec. 161.....................or under sub-sec. (2) of Sec. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction— (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government or some higher authorities of the Central Government. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from the office save with the sanction of the State Government. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from the office save with the sanction of the State Government. (c) in the case of any other person, of the authority competent to remove him from his office." Their Lordships of the Supreme Court held in S.A. Venkataraman vs. The State (8) that where the accused had ceased to be a public servant at the time the court takes cognizance of the offence alleged to have been committed by him as public servant, the provisions of Sec. 6 do not apply and the prosecution against him is not vitiated by the Jack of a previous sanction by a competent authority. 5. I am accordingly of the view that the protection under sec. 197 Cr.P.C. is only available if the person concerned continues to hold the public office on the date on which cognizance of the offence is taken. 6. The respondent ceased to be Chairman of the Pokaran Municipal Board on July 4, 1956. He was no longer holding that office when the challan was presented in the court of the learned S. D. M. on 7.7.58. No sanction under Sec. 197 Cr.P.C. was therefore required. 7. I accordingly allow the application and set aside the order of the learned Magistrate dated 13-8-58 holding that the respondent could not be prosecuted without the sanction of Government under Sec. 197 Cr.P.C. 8. Let the record be returned immediately so that the trial of the respondent on the charges under Sec. 420 and 468 I. P. C. may be proceeded with.