ALFREDO GONSALVES v. STATE — 1979 DIGILAW 273 (BOM)

JUDGEMENT This revision is filed against the judgment dated 10-4-78 passed by the Sessions Judge, Panaji, in Criminal Appeal No. 119/77 thereby confirming the conviction of the petitioner under Sections 420, 409 and 380 I. P. C. and sentenced to six months R. I. and to pay a fine of Rupees 300/- or in default to undergo 3 months S. I. for each of the offences as aforesaid. The sentences are to run concurrently. 2. The petitioner was a Bailiff attached to the Court of the Judicial Magistrate First Class, Panaji, between 25th February, 1975 to 16th April, 1975. The allegations against him are that on 14th April, 1975, he realized a fine of Rs. 10/- from Shri Prabhakar Vassu Rane, in his capacity as Bailiff of the Court, but failed to account for it; that on 16-4-75 he cheated one Bernardo Novais by dishonestly inducing him to deliver Rs. 5/- stating that the same amount was required to be paid in the Court of the Judicial Magistrate, First Class, Panaji, as a fine, that on an earlier date, i. e., 25th February, 1975, he also cheated Francisco Miranda by dishonestly inducing him to deliver Rs. 5/-to him stating that the amount was required to be paid as fine in respect of challan No. 1326/75/C. For the first offence he was charged under Sec. 409 of the I. P. C.; for the second he was charged with offences punishable under Sections 420/380 of the I. P. C. and for the third, he was only charged with the offence punishable under S. 420 I. P. C. 3. The accused pleaded not guilty to the aforesaid charges. The trial Magistrate after considering the evidence led in the case came to the conclusion that the case against the accused on all counts was proved beyond reasonable doubt and accordingly he convicted him and awarded the sentences earlier mentioned. Being aggrieved against the said decision, the petitioner preferred an appeal to the Court of Sessions Judge. This appeal as already stated, was dismissed. 4. Shri S. V. Joshi, learned advocate for the petitioner, has taken only one point which relates to the sanction for the prosecution of the petitioner. According to Shri Joshi, sanction under Section 197 Cr. Being aggrieved against the said decision, the petitioner preferred an appeal to the Court of Sessions Judge. This appeal as already stated, was dismissed. 4. Shri S. V. Joshi, learned advocate for the petitioner, has taken only one point which relates to the sanction for the prosecution of the petitioner. According to Shri Joshi, sanction under Section 197 Cr. P. C. for the prosecution of the accused accorded by this Court through its Registrar is no sanction at all because the petitioner was not appointed by this Court, but by the Government. In support of his above plea, he produced the letter of appointment of the petitioner for the first time in this Court, Shri Dias, Government Advocate has conceded that the appointment of the petitioner was made by the order of the Administrator of this Territory and not by this Court. Thus there is no dispute that the petitioner was appointed by the Administrator, vide certified copy of the order placed at p. 27 of this Court's file. The point which at once arises for consideration is therefore whether the sanction for prosecution of the petitioner accorded by this Court and conveyed through the Registrar is of any avail to the prosecution. The answer to the question turns upon the provisions of Section 197 (1) of the Code of Criminal Procedure which may usefully be extracted :- "Section 197 : Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or 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 - (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government." 5. It is well settled that right to prosecute a person or persons committing an alleged offence, is a common right available to every citizen. This right can however, be restricted by suitable legislation, either by express words or by necessary implication. Section 190 of Cr. P. C. empowers the Magistrates specified therein to take cognizance of any offence in the manner indicated in that Section. Section 197 of the same Code embodies an exception to Section 190. The object behind Section 197 is to prevent cognizance of vexatious proceedings against public servants regarding their acts which may be offences under the law. A perusal of the language employed in Section 197 of the Code makes it clear that it is only a qualified protection and does not apply to all public servants and to all offences. Two conditions have to be satisfied before this Section could be invoked:- (1) The accused must be a public servant of the kind mentioned in the Section, i. e., a Judge, a Magistrate or a public servant not removable from his office except by or with the sanction of the State Government or Central Government; (2) The offence must be committed by the accused while acting or purporting to act in the discharge of his official duty. 6. Since Section 197 of the Code is in the nature of an exception to the general rule contained in Section 190 Cr. P. C.; the accused who invokes the bar to his prosecution must satisfy the above two pre-conditions. 7. The scope and effect of Sec. 197 (1) Cr. P. C. are no longer in doubt. The Supreme Court had occasion to interpret this provision in a number of cases. (See AIR 1955 SC 287 , AIR 1969 SC 686 and AIR 1970 SC 1661 ). It is not necessary to go into the details of those cases. Purpose would be served if reference is made here to an observation recorded by the Supreme Court in 'Prabhakar v. Shanker' ( AIR 1969 SC 686 ). "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 pertinent or fanciful claim that he did it in the course of the performance of his 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 but not a pertinent or fanciful claim that he did it in the course of the performance of his duty". According to the Court what had to be found out was whether the act and the official duty were so interrelated that one could postulate with some amount of reasonableness that it was done by the accused in the performance of his official duties, though in excess of the needs and requirements of the situation. 8. In so far as the facts of this case are concerned, it is not disputed by the prosecution that the second pre-condition is fulfilled. In this view of the matter it is unnecessary to set out the facts relating to this aspect of the case. It is the first pre-condition which has created some difficulty. It is also not the case of the prosecution that sanction for the prosecution of the petitioner was not necessary in this case. It is true that the question regarding invalidity of the sanction taken up before the Appellate Court was rejected on the ground that the defect was curable by the provisions contained in Section 465 of the Cr. P. C. Section 465 of the Cr. P. C. says that subject to those provisions no omission, error or irregularity in any proceeding will entail a reversal or alteration in appeal or revision of any finding, sentence or order unless such error, omision or irregularity has in fact occasioned a failure of justice. This Section is based on the principle that mere technicalities in respect of matter which are not at all vital or important in a criminal trial, should not be allowed to frustrate the ends of justice. It is therefore often said that the section is more of a curative nature and removes any defect which may otherwise lay the judgment or the order of the Court vulnerable. This section corresponds to Section 537 of the Code of 1898. There are, however, some changes in the new section. To this section the words, "or any error or irregularity in any sanction for the prosecution" have been added. Thus under the present section, an error or irregularity in any sanction for the prosecution is a curable defect. This section corresponds to Section 537 of the Code of 1898. There are, however, some changes in the new section. To this section the words, "or any error or irregularity in any sanction for the prosecution" have been added. Thus under the present section, an error or irregularity in any sanction for the prosecution is a curable defect. It may be seen that the words used are "error or irregularity" and not "omission". Thus omission to obtain sanction for the prosecution will not be a defect curable under the present section. The question of sanction was not raised in the Appellate Court in the form in which it has been raised before this Court. There it was assumed, both by the prosecution and the accused, that the Judicial Commissioner is the Appointing Authority of the petitioner. What was argued was that the sanction order produced in the Court did not reflect application of the mind of the Judicial Commissioner and that communication of the order of sanction by the Registrar was improper. The learned Sessions Judge, having regard to the contention raised, treated it as a mere irregularity and then held that the defect was curable in terms of Section 465 Cr. P. C.; but now it is found that the only authority which could have accorded sanction is the Administrator, in view of the appointment letter produced in the Court. It is not disputed by the prosecution that the Bailiff was removable only by the Administrator and not by any other authority. If that is the position, there is no escape from the conclusion that there was no sanction whatsoever for the prosecution of the petitioner. It will therefore be a case of "omission" and as earlier stated, an omission to obtain sanction for the prosecution of a public servant is not a curable defect, so as to attract the provisions of Section 465 Cr. P. C. It has not been pointed out to the Court that the petitioner could be removed by authority other than the State Government on the date the prosecution was launched against him. In the case of 'Nagraj v. State of Mysore' ( (1964) 3 SCR 671 ) a similar question arose. There, in that case, a Sub-Inspector of Police was placed on trial for certain offences alleged to have been committed by him in the course of duties. In the case of 'Nagraj v. State of Mysore' ( (1964) 3 SCR 671 ) a similar question arose. There, in that case, a Sub-Inspector of Police was placed on trial for certain offences alleged to have been committed by him in the course of duties. It was contended that the appellant could be dismissed by the State Government alone and therefore sanction under Section 187 Cr. P. C. was necessary. The Court found that the Inspector General of Police could dismiss the Sub-Inspector and therefore no sanction of the State Government for prosecution of the appellant was necessary. The appellant's contention that he should be treated as Inspector under the Mysore Police Act, 1908 was not accepted. The principle laid down in the aforesaid case is that where a public servant is removable by the State/Central Government, sanction for the prosecution is necessary. In the instant case, having regard to the appointment letter produced in the Court, there is no doubt that the petitioner is removable by the Administrator alone. No sanction for his prosecution has been obtained from the Administrator. The sanction obtained from this Court and filed in the case is of no avail and it will be a case where the prosecution has omitted to obtain sanction for the prosecution of the petitioner. Mr. Dias appearing for the Government, concedes to the above position and submits that in view of the defect noticed in the case, the conviction of the petitioner cannot be sustained. I think his concession is not without substance. It is now brought to my notice that under the C. C. A. Rules, the appointing authority of the accused/petitioner is the District Judge. But it is pointed out by Mr. Dias that despite the C. C. A. Rules the appointment of the petitioner was made by the Administrator for the reasons best known to the then Government. Having been so appointed, he cannot be removed by any authority lower than and subordinate to the appointing authority, I think what he has submitted appears to be right. This has also been the view of the Supreme Court in the case of Krishna Kumar v. Divisional Asst. Electrical Engineer Central Railway ( AIR 1979 SC 1912 ) brought to the notice of the Court by Mr. S. V. Joshi learned counsel for the petitioner. This has also been the view of the Supreme Court in the case of Krishna Kumar v. Divisional Asst. Electrical Engineer Central Railway ( AIR 1979 SC 1912 ) brought to the notice of the Court by Mr. S. V. Joshi learned counsel for the petitioner. That is a case under Article 311 (1) of the Constitution of India, but nevertheless the principle underlying therein is applicable to the instant case. Therein the appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. It was held :- "that since the appellant had been removed from service by an order passed by the authority who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant's appointment the order of removal was in patent violation of the provisions of Article 311 (1) of the Constitution. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311 (1) becomes available. The subsequent authorization made in favour of the authority passing the order of removal in regard to making appointments to the post held by the appellant cannot confer upon him the power to remove him Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer did not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts had been delegated to him. Applying the above principle to the case in hand it has to be said that the sanction by an authority subordinate to the appointing authority is not adequate to meet the legal requirement. So at any rate the sanction cannot be held valid. 9. In view of the incurable defect noticed in the case, the conviction of the petitioner cannot be sustained. Consequently, the conviction and sentence passed on him have got to be set aside. So at any rate the sanction cannot be held valid. 9. In view of the incurable defect noticed in the case, the conviction of the petitioner cannot be sustained. Consequently, the conviction and sentence passed on him have got to be set aside. 10. In the result, the revision succeeds. The conviction and sentence passed on the petitioner are accordingly set aside. Revision allowed.