STATE OF KERALA v. RETNAMMA — 1987 DIGILAW 559 (KER)

Judgment :- 1. This is an appeal filed by the State challenging the acquittal of the accused. Originally the accused was convicted by the Judicial First Class Magistrate, Neyyattinkara, but the same was set aside by the appellate court. This is being challenged in this appeal. 2. The accused was working as an assistant in the Savings Bank Section of the Kanjiramkulalm Sub-Post Office from 1-4-1980 to 6-7-1980. The case against the accused is that on 26-5-1980 with the intention to commit breach of trust she falsified accounts of Kanjiramkulam Sub-Post Office and misappropriated an amount of Rs. 6100/- from the Savings Bank Account No. 762530. P.W. 2 was the account holder. P.W. 1, the Postal Inspector in the postal division, Neyyattinkara found out the misappropriation and reported the matter to the police. The police registered a case as crime No. 82 of 1982 on the basis of that report. P.W. 11, the Sub Inspector of Police, Kanjiramkulam conducted preliminary investigation and laid the charge sheet before court. 3. The trial court found that the accused falsified the account and committed breach of trust and misappropriated the amount. The lower appellate court also considered the evidence in detail and concurred with the finding of fact regarding the misappropriation of the amount and the falsification of the account. However, it was held that there was no sanction for prosecution and the trial court was not competent to take cognizance of the offence in view of S.197 Cr. PC. So the only point that arises for consideration is whether prior sanction for prosecution was necessary or not. Admittedly the accused was a permanent public servant not removable from the office except by or with the sanction of the Government. The only other point involved in this case is whether the offence committed by the accused was done in the discharge of her official duty and that there was any reasonable connection between the act and the official function of the accused. 4. One of the earliest decisions on this point is Hari Ram Singh v. Emperor (AIR 1939 PC 43). The Court held: "The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The Court held: "The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his 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 is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty so as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting." 5. In Amrik Singh v. State of Pepsu (AIR 1955 SC 309) it was held: "It is not every offence committed by a public servant that requires sanction for prosecution under S.197(1) Cr. In Amrik Singh v. State of Pepsu (AIR 1955 SC 309) it was held: "It is not every offence committed by a public servant that requires sanction for prosecution under S.197(1) Cr. PC, nor even every act done by him while he is actually engaged in the performance of his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution." In Shreekantiah Ramayya v. State of Bombay (AIR 1955 SC 287 their Lordships of the Supreme Court chose to widen the scope and ambit of S.197 Cr. PC, and it was held: "Now it is obvious that if S.197, Crl. PC is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. Bat it is not the duty we nave to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it." The Supreme Court in a subsequent decision in Matajog Dobey v. H.C. Bhari (AIR 1956 SC 44) after having made reference to the earlier decision held: "There must be a reasonable connection between the act and the discharge of official duly; 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. However in a later decision in Pukhraj v. State of Rajasthan (AIR 1973 SC 2591) reversing the finding of the High Court their Lordships of the Supreme Court held that the acts attributed to the accused in the complaint filed therein did not come within the scope of official duty and no sanction under S.197 Cr. PC, was required. That was a case in which the appellant a postal clerk was alleged to have been kicked in the abdomen and abused by his superior officer when the former met the latter to request for the cancellation of his transfer. PC, was required. That was a case in which the appellant a postal clerk was alleged to have been kicked in the abdomen and abused by his superior officer when the former met the latter to request for the cancellation of his transfer. In a recent decision of the Supreme Court in AIR 1983 (1) SCC Page 11 (B.S. Sambhu v. T.S. Krishnaswamy) it was held that no sanction was required it the acts attributed to the accused had no connection with the official function of the accused. A Division Bench of this Court in Sankarankutty v. Dy. Superintendent of Police (1961 (2) Crl. LJ 484) considered whether sanction was necessary to prosecute the accused. The Court elaborately considered the case-law on the point and held: "To require a sanction under S.197(1) or S.132 Cr, PC for the prosecution of a public servant, the act complained of against the official must be an offence and there must be a reasonable connection between the act complained of and the duty of the officer as a public servant, so that, if questioned, the officer can reasonably profess to have done the act in exercise or in purported exercise of his official duty. The act complained of may have exceeded the limits of the official duty, but it still remains to be in exercise or purported exercise of his official duty, if the connection between the act and the official duty is a reasonable one and not merely a fanciful one. That is, that the official position should not be used as a mere cloak to defend the act complained of. There are some offences which by their very nature are incapable of being committed by public servants, while acting or purporting to act in the discharge of their official duties e.g., conspiracy, bribery and cheating. An offence under S.409 of the Penal Code cannot normally be committed by a public servant acting in discharge of his duties or purporting to act in his official capacity. In such a case the test must be to find out whether, on the facts and in the circumstances of the case, the act complained of is not integrally connected with the duties attaching to the office as to be inseparable from them, in which case sanction is necessary. In such a case the test must be to find out whether, on the facts and in the circumstances of the case, the act complained of is not integrally connected with the duties attaching to the office as to be inseparable from them, in which case sanction is necessary. Sanction is necessary to prosecute under S.477A of the Penal Code, if it is the official duty of the public servant to keep accounts, wherein false entries are made." 6. The law on the point is very much clear that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it. In order to enable the public servant to claim the benefit of this section it is not enough that the act complained of was committed by him at the time he was discharging or purporting to discharge his official duty. There must be some perceptible connection between the act and the discharge of his official duty. It may be a case of the public servant wrongfully or negligently discharging his official duty or a case of exceeding his authority. Where the act complained of, though not itself sanctioned by statute or enjoined by his official duty is, however, so intimately and integrally connected with his official or statutory duty that it can be said to have been done in furtherance of the duty prescribed by statute or for achieving the object enjoined by his duty. 7. Applying the above principle of law it is to be found that this is a case where there should have been a sanction by the Central Government for prosecuting the accused. The accused was working as postal assistant during the relevant period. She was in charge of the Saving Bank Account. PW2 was having an account in the Savings Bank as S.B. Account No. 762530. There was a balance of Rs. 12,500.00 as on 6-1-1980 and PW2 had withdrawn an amount of Rs. 12495/- on 8-7-1980 and no other withdrawal had been recorded in the passbook during the relevant period. However, the accounts kept in the Kanjiramkulam Sub-Pst Office would show that an per Ext. P3 Savings Bank Ledger card in respect of Account No. 762530 a sum of Rs. 6100 was withdrawn on 26-5-1980. The said withdrawal was not seen recorded in Ext. P2 pass book. However, the accounts kept in the Kanjiramkulam Sub-Pst Office would show that an per Ext. P3 Savings Bank Ledger card in respect of Account No. 762530 a sum of Rs. 6100 was withdrawn on 26-5-1980. The said withdrawal was not seen recorded in Ext. P2 pass book. PW1 stated that he verified the withdrawal application for the said amount from the Head Post Office, Neyyattinkara and he came to know that there was difference between the signatures of the depositor seen in Ext. P4 and the specimen signature kept in the Sub Post Office. Other relevant registers and entries were also produced and marked in this case. The accused being a postal assistant was in charge of the accounts and the misappropriation of Rs. 6100/- has been effected by manipulating the official records. Therefore, eventhough it was not part of her official duty to commit an offence of this nature, the same was committed in the course of her official functioning and there is reasonable connection between the act and the discharge of her official duty. Therefore I hold that this is a case where there should have been sanction for prosecution as contemplated under S.197 Cr. PC and the learned Sessions Judge has rightly acquitted the accused for that reason. There is no merit in this appeal filed by the State and the same it dismissed.